H

LIMITATION OF APPELLATE JURISDICTION OF THE

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

COMMITTEE ON THE JUDICIARY

JAMES O. EASTLAND, Mississippi, Chairman

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

JAMES O. EASTLAND, Mississippi, Chairman

ROBERT MORRIS, Chief Counsel
J. G. SOURWINE, A880ciate Counsel
BENJAMIN MANDEL, Director of Research

LIMITATION 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. Te subcommittee met, pursuant to call, at 2:35 p. m. in room United States Capitol Building, Senator James O. Eastland, airman, presiding.

ent: Senator Eastland.

-Present: Robert Morris, chief counsel; Julien G. Sourwine, te counsel; Benjamin Mandel, research director.

CHAIRMAN. Let's have order. Proceed.

MENT OF HON. WILLIAM E. JENNER, SENATOR FROM THE STATE OF INDIANA

or JENNER. Mr. Chairman, I am grateful for this opportunpear and testify on behalf of my bill, S. 2646, to limit the e iurisdiction of the Supreme Court in certain cases. ll referred to is as follows:)

[S. 2646, 85th Cong., 2d sess.]

To limit the appellate jurisdiction of the Supreme Court in certain cases. acted 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

2:

itation on appellate jurisdiction of the Supreme Court.

anding the provisions of sections 1253, 1254, and 1257 of this Supreme Court shall have no jurisdiction to review, either by apf certiorari, or otherwise, any case where there is drawn into quesdity of—

any function or practice of, or the jurisdiction of, any committee or ittee of the United States Congress, or any action or proceeding a witness charged with contempt of Congress;

any action, function, or practice of, or the jurisdiction of, any offiency of the executive branch of the Federal Government in the ration of any program established pursuant to an Act of Congress e for the elimination from service as employees in the executive of individuals whose retention may impair the security of the States Government;

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

1

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

"(5) any law, rule, or regulation of any State, or of any board of bar examiners, or similar body, or of any action or proceeding taken pursuant to any such law, rule, or regulation pertaining to the admission of persons to the practice of law within such State."

(b) The analysis of such chapter is amended by adding at the end thereof the following new item:

"1258. Limitation on the appellate jurisdiction of the Supreme Court."

Senator JENNER. As the committee knows, I discussed this bill and the reasons back of it at considerable length in a speech on the floor of the Senate. I should like to ask that the text of that speech be 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 Senate declared, in a speech on the Senate floor, that "if the Supreme Court had another 3 or 4 months to hand down decisions which help the Communist Party, our Government and our institutions might well be at the mercy of the Communist conspiracy by the end of the summer."

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

No conceivable combination of votes in the Congress could have done as much damage to our legislative barriers against communism and subversion as the 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 legis lative structure erected by the Congress for the protection of the internal security of the United States against the world Communist conspiracy.

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

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

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

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

Laymen and lawyers, the legislative branch and the executive branch of Gov ernment, have come to recognize the predilection of the Supreme Court for making new law. Even the lower courts have come to expect it, with the result that it has become commonplace for decisions to be held up in lower courts wait 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 in March 1956 of violation of the Smith Act, but not yet sentenced, and now likely to be turned loose through application of the new doctrine enunciated by the Supreme Court in the Jencks case.

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

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

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

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

By me of these decisions, antisubversive laws and regulations have been rendered ineffective. States have been denied the right to fight subversion, and have been denied the right to bar Communists from practicing law. Violators of Federal antisubversive laws have been turned loose on flimsy technicalities. Confidential files of the FBI and of other investigative and law-enforcement agenzies have been opened up to fishing expeditions by defendants and their sel The Court has challenged the authority of Congress to decide upon the scope of its own investigations and the right of a congressional committee to Ek 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 a.ready tried, the Supreme Court can, and does. The Supreme Court can change oversight a rule of law 100 years old, and can make the new rule apply to all ass underway, and provide a basis for reopening cases already tried which uvolved the point covered by the new rule.

There is no way for Congress to invalidate or repeal a decision of the Supreme Court of the United States, even when that decision is legislative and policymaking 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 ogress, by a new declaration of intent. This power of the Congress should * 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 Governand many of its feats are subject to no review.

Lets.ook at some of the Supreme Court's recent decisions which had particular act of a legislative nature.

During the closing weeks of its 1956 session the Court decided the case of Xe nav. Pennsylvania, and in that decision threw a roadblock against the efforts of the people to check the spread of Communist power through their State govHIS DR The Court told the sovereign States that even though they themselves E be in danger of being overthrown by the Communist conspiracy, they it is act, because, said the Court, Congress had "pre-empted" the field. 1 Less general from several of the States last year came to Washington to ify how the Supreme Court's decision in the Nelson case had completely feated their previously effective efforts against the Communist conspiracy

their States. We had the attorney general from the State of Massachutes testify that as a result of this decision 15 Communists against whom action ad been taken had to be let loose to go ahead with their subversive activity. The emption outlined by the testimony of these several attorneys general of * States was so threatening that the senior Senator from New Hampshire vi Loved to observe that if the Communist threat should become more serious Els State, the people would have to take the law into their own hands.

April 9, 1956, 1 week later, we had to recoil in our deliberations when reme Court, in the slochower case, drew the circle even tighter and at municipal authorities could not take action to get rid of Communist rs, who defied a legally constituted body when they had an obligation k, and by such flagrant misconduct scandalized the mothers and fathers Es entrusted their children to the care of the city. New York City had to teletate some of these teachers with back pay, and Professor Slochower himself tes an indemnity of $40,000 because of the consequences of this highly arbitrary drroneous decision of the Supreme Court. One has only to read the brief with the Supreme Court by New York City in its quest for reargument to the recklessness of the Supreme Court's decision in that case. In its the Court put forth a conclusion to support its findings which con* New York City convincingly shows was not supported by the record. 43 was it not supported by the record, but the corporation counsel of the ** New York irrefutably showed that the very opposite conclusion was fare But the Supreme Court was unmoved.