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Communism and the Vinson Court

The Story

In June 1946, Fred Vinson, a Kentucky native, left his position as Secretary of the Treasury under President Harry Truman to become Chief Justice of the Supreme Court of the United States. With the end of World War II, the American government’s ideological enmity swung from the fascism of Adolph Hitler to the communism of Soviet Russia, and Vinson’s Supreme Court shifted to match. Vinson arrived to a contentious Court that was divided along ideological lines between defenders of personal liberty and supporters of governmental deference. But unexpected changes to the makeup of the Court, along with pressures from the increasingly anti-communist legislative and executive branches, tipped the balance in favor of deference toward Congress and the President--especially as the branches confronted what the Court saw as the unique threat posed by communism.

In this exhibit, the Heyburn Initiative showcases archival materials that document the evolution of the Court's treatment of communism during the Chief Justice’s tenure from 1946 to 1953.

This exhibit was created by Jesse Nau, Heyburn Initiative assistant archivist, June 2020

President Harry Truman nominates Treasury Secretary Fred Vinson to Supreme Court

Published in the Evening Star, Jim Berryman's cartoon portrayed Vinson's task of mending a split Supreme Court.

Vinson joined a court riven by contentious personal, political, and philosophical divides. One conflict centered on the role of individual civil liberties against the federal government’s mission to defend national security. In fact, President Truman nominated his old friend Vinson to the court to, among other reasons, smooth out the bitter divisions among the sitting justices.  But conflicts on the bench only became more pronounced in the seven years that Vinson presided over the court, and communism represented one axis of division. One faction of justices championed civil liberties, and consisted of Hugo Black, William Douglas, Frank Murphy and Wiley Rutledge. The other faction prioritized national security and attendant deference to the elected branches; this group consisted of Harold Burton, Felix Frankfurter, Robert Jackson, Stanley Reed, and later Vinson himself. In cases related to communism, the civil libertarians were more willing to side with communist defendants than were the national security justices, who generally viewed leftist politics as a particular danger to the country. 

Judge Learned Hand

Circuit Judge Learned Hand played a key role in several communism cases, and tried to intervene behind-the-scene to protect his friend Lovett's salary during HUAC's proceedings.

Three weeks before Vinson became chief justice, the Supreme Court ruled unanimously on United States v. Lovett (1946). In that ruling the court held that Congress could not prevent the payment of a salary to specific individuals. The case started when the House Un-American Activities Committee (HUAC) attempted to defund government employees accused of subversive communist activities, including that of Edward Lovett, Government Secretary of the Virgin Islands from 1941 to 1943. The decision was a blunt rejection of HUAC's actions and represented a willingness to, at least obliquely, push back on a growing anti-communist movement in the federal government. The pro-national security and pro-civil liberties factions in the Court had not found a reason to butt heads over communism cases yet, and this peace held for Vinson’s first three years as chief.

Pallbearers at the funeral of Justice Wiley Rutledge

The death of Wiley Rutledge changed the ideological makeup of the court.

In 1949, the Court’s balance of power shifted in favor of the national security justices. Frank Murphy and Wiley Rutledge, two justices in the civil liberties camp, died unexpectedly during the summer recess. Days before the October Term began William Douglas suffered a serious injury while horseback riding that took him out of the Court's proceedings for most of the term. Congress quickly approved President Truman’s nominees, Sherman Minton and Tom Clark, to the Court. Along with Vinson, Reed, and Burton, Minton and Clark would consistently decide cases in support of the Truman administration. As the government push against communists grew more aggressive with the Second Red Scare, the Court became a means of furthering that agenda.

Chief Justice Fred Vinson and Justice Hugo Black

Justice Hugo Black (right) was the most stubborn opponent of Chief Justice Vinson (left) in communism-related cases.

In American Communications Association v. Douds (1950), the Vinson Court held that requiring labor union leaders to take anti-communist oaths did not compromise First Amendment rights under the Taft-Hartley Act. A 5-1 decision (Justices Minton, Clark, and Douglas did not participate), the ruling skirted around the “clear and present danger test” which had safeguarded the rights of political minorities for decades. Vinson, who drafted the majority opinion, argued that union strikes were coercive and therefore not covered by the First Amendment. He wrote that expecting the government to wait for an imminent danger before acting “an absurdity.” The decision also limited its targets to Communist Party members who actively worked to overthrow the US government. Justice Black, the lone dissenter, criticized both the legal grounds of Vinson's opinion and its potential negative outcome. Black wrote that under the First Amendment, "beliefs are inviolate" and that anti-communism oaths were unconstitutional. He also argued that the opinion's ambiguous language could be used to bar political dissidents from "mere membership in unions, and, in fact, from getting or holding any jobs whereby they could earn a living."

[Dr. Edward Barsky, head-and-shoulders portrait, seated at a table, facing front] / World Telegram & Sun photo by World-Telegram Staff Photographer.

Edward Barsky was the leader of the Anti-Fascist Refugee Committee at the time of the case, and had been arrested for refusing the HUAC subpoena.

In Joint Anti-Fascist Refugee Committee v. McGrath (1951), the Court held that organizations could sue to challenge their inclusion on the Attorney General’s “List of Subversive Organizations”. In 1947, President Truman had ordered Attorney General Tom Clark to publish the List to identify potential threats to the US government. When Dr. Edward Barsky and other leaders of JAFRC saw their group on the list, they sued the federal government for lack of due process. The Supreme Court decided in favor of the Anti-Fascists in a tight 5-3 vote, with now-Justice Clark sitting out the case. The controlling opinion, written by Burton and joined by Douglas, stated that since the allegations of the plaintiffs were never contested, they must be true. Justices Black, Frankfurter, Jackson, and Douglas each wrote a concurrence, while Justices Vinson and Minton joined Reed’s dissent. The fractured holding represented a rare win in the Vinson Court for leftist litigants: The Court continued its generally pro-deference, pro-national security stance long after JAFRC’s victory over the Attorney General’s List

Swearing-in of Justice Tom Clark

Clark, shaking hands with President Truman here, was forced to recuse himself from many communism cases because of his previous job as Attorney General.

In Dennis v. USA (1950), Eugene Dennis and ten other members of the Communist Party of the United States of America (CPUSA) were arrested for violating the Smith Act, which penalized advocates of overthrowing the US government. The CPUSA members claimed that their arrests violated their free speech rights. The Supreme Court ruled against the CPUSA members.

The case divided the court: Vinson authored the controlling opinion, joined by Reed, Minton and Burton. Frankfurter and Jackson each wrote concurrences and Douglas and Black each wrote dissents (Clark again recused himself). As in Douds, Vinson reinterpreted the clear and present danger test and insisted that the government needn’t wait to act until danger was visible. Instead, he applied a balancing test proposed by Judge Learned Hand, who wrote the majority opinion against the CPUSA at the appellate level. This test measured the danger of potential actions against the likelihood of them occurring. In Dennis, Hand found, and Vinson agreed, that the communist threat justified the removal of free speech rights from party members.

Address of Justice William O. Douglas at the Annual Dinner of the Rhode Island Bar Association

In this speech to the Rhode Island Bar Association, Douglas made his views against communism very clear.

Despite a trend of ruling in favor of national security over the civil liberties of communists, justices on the Vinson Court held complicated relationships with communism, as the simultaneous rise of McCarthyism cast shadows on every member of the government. All of the justices were against communism politically, but Justices Douglas and Black insisted on defending the constitutional rights of communists. In a 1947 speech before the Rhode Island Bar Association, Douglas condemned communism and fascism alike, and asserted that the civil liberties granted and protected in the Constitution distinguished the United States from authoritarian states around the world. This belief informed Justice Douglas's consistent defense of the rights of communists, including granting a last-minute stay of execution to Julius and Ethel Rosenberg in Rosenberg v. United States (1953).

Julius and Ethel Rosenberg, separated by heavy wire screen as they leave U.S. Court House after being found guilty by jury / World Telegram photo by Roger Higgins

The conviction of Ethel and Julius Rosenberg for treason had already been confirmed, it was the extent of their punishment that continued to be an issue.

Julius and Ethel Rosenberg were convicted as Soviet spies in March 1951. After an intense legal and political battle, they were scheduled for execution on June 18, 1953. Just days before the execution, however, Justice Douglas heard another interpretation of the case from a Tennessee attorney named Fyke Farmer. As a result, Douglas issued a stay of execution on June 17 so that the Supreme Court could review Farmer's argument that the Rosenbergs should have been convicted under the Atomic Energy Act, which did not permit execution, rather than the Espionage Act of 1917, which did. The Court met in special session to consider both the stay issued by Douglas and the arguments presented by Farmer. In the end, a majority decided to set aside Douglas’s stay and let the State proceed with the execution. The Rosenbergs were executed on June 19, 1953. 

"Affirming Due Process" editorial from the Toledo Blade

This July 21, 1953 editorial in the Toledo Blade describes the accusations against Black in the Senate and Vinson's defense of Black's stay of execution.

In the fraught political environment created by McCarthyism, Douglas’s stay of execution in the Rosenbergs’ case brought allegations of conspiracy and a call for his impeachment in the Senate. Vinson, in his majority opinion, defended Douglas against his critics. Consistent with his pro-government, national-security-minded views, Vinson held that the government could execute the Rosenbergs. However, he also defended Douglas’s actions, writing that “Mr. Justice Douglas had power to issue the stay. No one has disputed this, and we think the proposition is indisputable.”

As this Toledo Blade article notes, the political pressure placed upon the justices was very real, stemming from both Congress and the President. To defend civil liberties in the face of the Second Red Scare invited criticism of the Court as a whole, a threat that Vinson and the entire Court stood united against, regardless of their positions on the communist threat itself.

The Rosenberg case represented one of the Vinson Court's final responses to communism. On September 8, 1953, the Chief Justice died from a heart attack at the age of 63.

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