by Jim Newton
The first round of that year’s attack on the Court went to the justices when Learned Hand, having encouraged the Court’s foes, then refused their invitation to testify on behalf of the bill. Hand deplored much of what the Warren Court had wrought, but he was too intellectually honest to join its most frothing critics. Moreover, although Hand declined to comment on the bill’s constitutionality, he did allow that he did not think its provisions removing jurisdiction from the Court were good for the nation.81 The Court’s attackers had stumbled into intellectual credibility; now it was taken away. Still, they shouldered on in both houses, amending the bill through the spring and summer and eventually bringing it to the floor of the Senate on August 20. It was there that Majority Leader Lyndon Johnson, who was even then building his national résumé to run for president and thus eager to distance himself from Southern attacks on the bench, worked mightily to keep the bill’s supporters from gaining the upper hand. Johnson’s efforts barely succeeded, as 41 senators voted against the motion to table; 49 supported the motion, however, and the bill died.
That was not quite the end, as a second bill, this one from the House, proposed to rewrite existing law on Communist investigations and prosecutions so as to make them invulnerable to the Court’s opposition. That bill came even closer. The Court’s supporters lost their motion to table, then Johnson managed to adjourn the Senate for the day. After berating Hubert Humphrey for miscounting the votes and allowing the motion to table to fail, Johnson alighted upon another tactic to kill the bill. He found Utah Republican Wallace Bennett and persuaded him that if the motion resulted in a tie, Vice President Nixon would have to vote to break it. That vote would haunt Nixon politically, Johnson warned, hurting him no matter which side he came down on. When the roll was called, Bennett, a supporter of Nixon, voted to send the bill back to committee, where it died.82
Across the street, Warren and his colleagues exhaled in relief. One vote had saved them, and it had been cast not in defense of Warren and his Court but in defense of Nixon. The legislation, Warren wrote in repose years later, “evoking as it did the atmosphere of Cold War hysteria, came dangerously close to passing.”83
Some of the justices recoiled at their close shave. Warren himself showed no signs of retrenching, but Frankfurter, already inclined toward restraint, now moved aggressively to back the Court away from controversy. In domestic security especially, but also in segregation and criminal justice cases, the Court withdrew into a period of stunned quietude, a period that lasted until roughly 1960, ending decisively only with Frankfurter’s retirement in 1962.
One early test involved the double-jeopardy case of Alphonse Bartkus, who was accused of robbing a savings-and-loan in Cicero, Illinois, on December 18, 1953. Tried in federal court, Bartkus was acquitted, but officials were unwilling to let the matter drop. Federal authorities gathered up their investigative file and shipped it over to state prosecutors, who presented it to a state grand jury and secured an indictment and ultimately a conviction of Bartkus in state court. Because of his prior record, Bartkus was sentenced to life in prison.84 His conviction having been upheld by Illinois courts, Bartkus brought his complaint to the United States Supreme Court in 1957, and the following January, the Court split 4-4, thus allowing Bartkus’s conviction to stand.85 He then asked for a rehearing, and the Court granted it, restoring the case to its docket in May 1958 and taking it up again in the fall, when the summer’s brush with Congress was fresh in the justices’ minds.
Warren, Douglas, and Black never had any doubts about how the case should be resolved. The Constitution bars “double jeopardy,” trying an individual twice for the same crime. In this case, Bartkus had been tried twice for robbing the same bank, and both juries heard evidence gathered by the same investigators. The only substantive difference was the courtroom—in one case, it belonged to the federal government; in the other, to the state of Illinois. That was a meaningless distinction to Warren—and, no doubt, to Bartkus. The chief justice announced from the start that he would overturn the conviction.
Frankfurter had different ideas and several overlapping agendas. First, Bartkus offered him an opportunity to tweak Black yet again over their different interpretations of the Fourteenth Amendment and whether it had imposed the Bill of Rights on the states. For years, Frankfurter had been losing that battle incrementally, and here, in Bartkus, he wanted the chance to state emphatically that Black was wrong and he was right. Second, keeping Bartkus in jail would send up a white flag to those who believed the Court hell-bent on putting criminals back on the streets. As an act of judicial diplomacy, Frankfurter saw in Bartkus the opportunity for tactical retreat.
Initially, Brennan indicated some sympathy with the Bartkus prosecutors. Brennan, his clerks recalled, “agreed that two separate prosecutions by a state and the federal government for the same act were not prohibited by the Constitution.”86
But as Brennan reviewed the record, he became troubled by the cooperation between the state and federal governments, by the sharing of information that had rendered the state trial in effect a rerun of the failed federal prosecution. The second prosecution, he concluded, “while in form a state prosecution, was in essence a second federal prosecution and thus was barred by the Constitution.”87 That brought Brennan to his natural place—the company of Warren, Black, and Douglas. And it left both sides—the unrepentant individualists and the world-wary judicial statesmen—looking for a fifth vote. Their feud grew “hot,” in Brennan’s word, fueled by the groaning pressure on the Court; it settled on the decision of Justice Potter Stewart.88
Stewart was one of two new Eisenhower justices. The first to arrive, Charles Whittaker, took his seat from the retiring Stanley Reed in March 1957. Whittaker was a skilled Missouri lawyer first named to the federal bench by Eisenhower in 1954. Just two years later, at the urging of the editor of the Kansas City Star but over Whittaker’s objections, Eisenhower elevated him to the Eighth Circuit Court of Appeals. And then, again with Whittaker objecting, Eisenhower placed him on the Supreme Court in 1957. The judge’s rapid rise gnawed at his insecurity, which then mushroomed on the high bench. Whittaker developed the belief that at least one justice should read the entire record of a case, a record that can include thousands of pages. Overwhelmed by the responsibility of serving as a justice and ill-prepared for it, Whittaker struggled terribly. Reflecting back on his tenure in later years, he ruefully characterized his service in baseball terms. “I went to first on a walk, second on a fielder’s choice, and I was sacrificed around third to home,” one of his clerks recalls him saying.89
The fifth and last of Eisenhower’s appointees, Stewart came less than a year later, taking his place after Burton retired in 1958. Stewart came from a conservative Ohio family and arrived at the United States Supreme Court from the Sixth Circuit Court of Appeals. He was a pragmatic man who would, in his twenty-two years on the Supreme Court bench, often find himself between the magnetic poles of his colleagues, joining the liberals in some instances, though more often siding with the conservatives. But while Whittaker agonized at the stress of centrism, Stewart seemed to like it. He was fond of Warren personally, admiring the chief justice’s patriotism while not always accepting Warren’s views of the Constitution. Because he replaced the fundamentally conservative Burton, Stewart did not significantly alter the Court’s ideological balance, but his arrival, combined with Frankfurter’s more aggressive retreat, initially helped push Warren into dissent on major opinions of the Court.
Bartkus was argued in the shadow of the congressional debate over the Court’s jurisdiction, and it thus marked an early test of strength between the two opposing camps on the Court. Both sides lobbied Stewart. Brennan and Frankfurter made their cases in competing memos, and once their cases were on the table, Stewart tipped the balance by joining Frankfurter. The Court upheld Bartkus’s conviction by a 5-4 vote. Black, Douglas, and Warren were irritated and let it show in Black’s dissent. “The Court,” Black wrote, “apparently
takes the position that a second trial for the same act is somehow less offensive if one of the trials is conducted by the Federal Government and the other by a State. Looked at from the standpoint of the individual who is being prosecuted, this notion is too subtle for me to grasp.”90 Bartkus went to prison.91
For the moment, that was where the Court rested—torn between Warren, Douglas, Black, and Brennan on one side and Frankfurter, Harlan, Stewart, and Clark on the other. Sometimes Stewart would join the Warren bloc, and the ninth justice, Whittaker, would move from one camp to the other depending on the case. That perpetuated the standoff that in turn led to the slowing of the Court’s activism. It also placed an enormous strain on Whittaker.
As the 1950s drew to a close, the Court wallowed and feuded. So bitter were the relations between Warren and Frankfurter, the heads of their respective blocs, that at times they leaked out in public. On June 30, 1958, Frankfurter delivered a long, charged dissent from a case involving California’s procedures for evaluating the sanity of defendants. As Frankfurter spoke, Warren became visibly agitated and finally could not contain himself. “Neither the judgment of this Court nor that of California is quite as savage as this dissent would indicate,” he said when Frankfurter concluded.92 Their running spat would continue to flare after that, making its way to the front pages in 1961, when they again tussled over a Frankfurter dissent. The headline on the jump page of that day’s New York Times said it well: “Warren Is Irked by Frankfurter.”93
Two of the cases that shouted the Court’s new posture came together, announced on a sort of Blue Monday as counterpart to 1957’s Red version. On 1959’s end-of-term Monday, the Court handed down two rulings—with Warren dissenting in both—that substantially gave back to Congress and state legislatures the very powers to “expose for the sake of exposure” that it had denied just two years earlier. In the first, a thirty-one-year-old Vassar College teacher named Lloyd Barenblatt had been brought before the House Un-American Activities Committee and ordered, as so many others had been before him, to divulge whether he or his friends had ever been Communists. He refused to answer and was held in contempt. As he fought his conviction, Barenblatt understandably was heartened by the Court’s ruling in Watkins, when it found that HUAC’s authorization was so vague that Watkins could not be convicted for refusing to participate. Two years later, HUAC was still sputtering away, and Barenblatt had every right and reason to assume that the Court’s decision in Watkins would apply to him as well.94
But Barenblatt underestimated the effect of fear. In Watkins, Warren had acceded to Frankfurter’s urging and ducked the First Amendment ruling that would have decided that case on constitutional terms. Yet Warren still had delivered a strong majority that set Watkins free. Those were bolder days. Now Barenblatt confronted a Court with barely a congressional vote to spare. Harlan, writing for the five-member majority that included Frankfurter, ruled that Watkins did not impose a “broad and inflexible” protection for those confronted with uncertainty about the legitimate reach of HUAC. On the central question of whether the First Amendment protected the confidences entered into in political discourse, the Court said, simply, No. “The protections of the First Amendment,” Harlan wrote, “. . . do not afford a witness the right to resist inquiry in all circumstances.” Instead, the government’s interests (those of self-preservation) had to be balanced against those of the person being questioned (those of free speech, privacy, and the right to associate with others of like mind). And the balance in this case, the majority concluded, tipped against Barenblatt, as one might expect it would when “self-preservation” sat on one side of the scale. He was ordered to answer or be held in contempt.95
Warren never was and never would be an absolutist. He did not accept Black’s belief that because the First Amendment specifies that Congress shall enact “no law” abridging speech, literally any law curbing speech was unconstitutional. But here, as his majority slipped away from him and he was forced to watch a young man bullied, the chief justice agreed to sign on to Black’s dissent. And though Black never did persuade his colleagues that “no law” meant literally “no law,” he was rarely more stirring than in his defenses of a robust debating America, one where people were free to test their ideas against one another without fear of government repercussions. Here, set against the sterile arguments of a cowardly majority, he let loose. “The First Amendment says in no equivocal language that Congress shall pass no law abridging freedom of speech, press, assembly or petition,” Black wrote as he warmed to the meat of his opinion. “The activities of this Committee, authorized by Congress, do precisely that, through exposure, obloquy and public scorn.”96 Black acknowledged that in some instances government could balance its interests against those of protestors but stressed, as he would with increasing conviction in later years, that only conduct might be regulated—a man seeking to broadcast his political views over a loud phonograph, say, could be ordered to turn it down. It was important, however, that here it was only the public peace that was allowed protection—the public did not need protection from ideas. Beyond that, balancing was a fiction and the majority had misconstrued the government’s side of the ledger, Black wrote:
At most it balances the right of the Government to preserve itself, against Barenblatt’s right to refrain from revealing Communist affiliations. Such a balance, however, mistakes the factors to be weighed. In the first place, it completely leaves out the real interest in Barenblatt’s silence, the interest of the people as a whole in being able to join organizations, advocate causes and make political “mistakes” without later being subjected to governmental penalties for having dared to think for themselves. . . . It is these interests of society, rather than Barenblatt’s own right to silence, which I think the Court should put on the balance against the demands of the Government, if any balancing process is to be tolerated.97
This was more strident language than Warren would write himself, but he was at his wit’s end, and it was difficult to resist such clear logic and strong prose. He signed on with Black, as did Douglas and Brennan, the latter of whom wrote a brief separate opinion but endorsed the work of Black as well. None of that helped Barenblatt. Rebuffed by the Supreme Court, he reported to authorities to serve his six-month sentence for contempt of Congress. After time in District of Columbia jail and federal prisons at Lewisburg and Danbury, he regained his freedom, which he reclaimed without the compromise of repentance.
Barenblatt was just one of two men to suffer on June 8, 1959, from the Supreme Court majority’s failure of courage. The second was Willard Uphaus. Uphaus was nearly seventy years old when his case came to the United States Supreme Court, and he had spent years fencing with New Hampshire’s attorney general, Louis Wyman, the same attorney general who had unsuccessfully sought to question Sweezy a few years earlier. Uphaus was a Methodist minister and a tough, flinty old character. A pacifist and leftist who had made trips to Moscow and Warsaw, he was the director of the World Fellowship Center, a quiet spot on a New Hampshire pond where, every summer, several hundred politically engaged men and women gathered to talk and listen to speakers. Uphaus’s unapologetic embrace of leftist causes drew Wyman’s attention and then ire, as Uphaus refused to give the attorney general a list of employees and guests of the camp. As he had with Sweezy, Wyman dragged Uphaus to court and asked him again, this time in front of a judge. Uphaus arrived ready. He came to court that day with a copy of the Bill of Rights in his hand and said his piece: “In the final analysis, after one has prayed, after one has thought of all aspects, one must, before God, make up his own mind or his own heart and conscience as to what he shall do. . . . I don’t want to involve innocent people in the attorney general’s network.”98 Unimpressed, the judge held him in contempt and ordered him held until he divulged the names; when he continued to refuse, Uphaus faced the real possibility that he could spend the rest of his life in jail.
Uphaus came to the Supreme Court with all the same reason to believe he would
find relief there that Barenblatt had expected. Like Barenblatt, he would leave disappointed. The majority, again a majority of one, upheld Uphaus’s contempt citation and cried crocodile tears over the effect that turning over the names of guests would inevitably have. Exposure, Clark acknowledged for his brethren, “is an inescapable incident of an investigation into the presence of subversive persons within a State.”99 Never mind that “exposure for exposure’s sake” was all that Wyman had in mind; there was no allegation that any person attending the camp had broken any law by being there. And never mind, too, that the Court had prohibited forced disclosure of NAACP records by Alabama under strikingly similar circumstances. The Supreme Court had paid a price for standing in defense of Communists and leftist dissent for long enough. With Barenblatt and Uphaus, it was washing its hands of these burdensome allies.
Warren, however, was not. He joined again with Brennan, Black, and Douglas in puncturing the majority’s reasoning. Brennan’s opinion in Uphaus lacked the fire or eloquence of Black’s in Barenblatt, but it ultimately sided with Uphaus in defense of his right to protect the names, not just for Uphaus’s sake but for the sake of a society that depends on the uninhibited exchange of sometimes unpopular ideas. “In an era of mass communications and mass opinion, and of international tensions and domestic anxiety,” Brennan wrote, “exposure and group identification by the state of those holding unpopular and dissident views are fraught with such serious consequences for the individual as inevitably to inhibit seriously the expression of views which the Constitution intended to make free.”100 Although the United States Supreme Court would not stand with him, Uphaus still refused to turn over the names, and spent a year in jail rather than submit to Wyman. Exhausted by the conflict, he finally was released just before Christmas in 1960. “I was able at the end of the year to emerge victorious, and to say I had peace in my heart, first because I had stood firm, and second because I held no hate in my heart for any human being,” Uphaus later reflected.101 He had kept his courage where the Court had not.