Close Call on Contempt

By weight of precedent, few principles in U.S. law should be better settled than the right of federal judges to enforce their orders and judgments by criminal-contempt penalties, assessed without juries. Yet last week the Supreme Court itself came perilously close to denuding the judiciary of its summary criminal-contempt powers. In 1789 the First Congress, following common-law practice, specifically granted federal courts the power "to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same." In 1890 the Supreme Court declared: "If it has ever been understood that proceedings . . . for contempt of court have been subject to the right of trial by jury, we have been unable to find any instance of it."

In at least 40 cases the Supreme Court has upheld the judiciary's summary criminal-contempt power; indeed, it has been sustained by every Supreme Court Justice since 1874 except William Woods (1880-87), James Byrnes (1941-42), and some of those presently sitting. And during last year's fight on civil-rights legislation, the Congress even overrode bitter Southern opposition to give the courts limited powers to enforce voting rights with the criminal-contempt weapon.

"Anomaly in the Law." The case considered by the Supreme Court last week was that of top U.S. Communists Gilbert Green and Henry Winston, convicted under the Smith Act in 1949, each fined $10,-ooo and sentenced to five years in prison. After sentencing, both jumped bail and hid out for nearly five years. When they gave themselves up in 1956, they were sentenced to three more years apiece for their contempt of court in jumping bond. The criminal-contempt convictions were upheld last week by the Supreme Court--but only by a 5-to-4 vote.

The majority opinion, written by Justice John Marshall Harlan, cited the overwhelming precedent upholding criminal-contempt convictions without juries. Justice William J. Brennan reserved his opinion on the constitutional points involved, dissented on the ground of insufficient evidence. But Hugo Black wrote a dissenting opinion for himself, Chief Justice Earl Warren and William Douglas, which struck at the foundations of the judiciary's enforcement powers. Wrote Black: "The power of a judge to inflict punishment for criminal contempt by means of a summary proceeding stands as an anomaly in the law . . . No official, regardless of his position or the purity and nobleness of his character, should be granted such autocratic omnipotence."

"Sinew of the Law." What Hugo Black and dissenting brethren did not concede was that by attempting to wipe out by judicial decree the principle and practice of centuries, they were arrogating to themselves a very real sort of omnipotence. That fact was pointed out in an opinion, concurring with the majority, by Felix Frankfurter: "To be sure, it is never too late for this court to correct a misconception in an occasional decision. [But] to say that everybody on the court has been wrong for 150 years and that that which has been deemed part of the bone and sinew of the law should now be extirpated is quite another thing. Decision-making is not a mechanical process, but neither is this court an originating lawmaker."

This file is automatically generated by a robot program, so reader's discretion is required.