Recusant Witnesses and the McCarthyite Congressional Investigations
| Author | Ross J. Corbett |
| Position | Received his Ph.D. in political science from the University of Toronto and his J.D. from Northwestern University School of Law |
| Pages | 123-148 |
Br. J. Am. Leg. Studies 5 (2016), DOI: 10.1515/bjals-2016-0004
R W MC
C I
Ross J. Corbett *
ABSTRACT
This paper charts the Warren Court’s handling of those convicted for con-
tempt of Congress at the urging of the House Un-American Activities Com-
mittee and the Senate Subcommittee on Internal Security. An examination of
the arguments made in the Court’s various opinions—and by whom—reveals
that the outcomes in these cases cannot be explained solely by the changing
membership of the Court. Even when there were the votes to support the
vigorous denunciations of the McCarthyite congressional investigations that
found expression in dissents inspired by Watkins v. United States, the Warren
Court took a more measured tone. That more measured tone was an attempt
to avoid a repeat of the fractured Court amidst a public backlash that Warren
had provoked with Watkins and marked a return to the Court’s pre-Watkins
use of formalism to bring about the just result.
* Ross J. Corbett received his Ph.D. in political science from the University of Toronto and
his J.D. from Northwestern University School of Law. He is author of THE LOCKEAN
COMMONWEALTH (2009) as well as articles on emergency powers, higher education
policy, Aristotle, Machiavelli, Locke and natural law.
CONTENTS
I. I ...................................................................... 124
II. C C U V ..............................125
III. C P: T O S.......................... 130
IV. W S H H: W . US .........134
V. T R A W ...........................................138
VI. E MC I T F .... 143
© 2015 Ross J. Corbett, licensee De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
124
5 Br. J. Am. Leg. Studies (2016)
I. I
By the time Chief Justice Earl Warren decided his rst case involving con-
tempt of the House Un-American Activities Committee (“HUAC”),1 the
only change to the composition of the Supreme Court since its now-infa-
mous decision in Dennis v. United States2 was that he had replaced Chief
Justice Fred Vinson and Justice John Marshall Harlan had replaced Justice
Robert Jackson. On only one occasion was the new Chief Justice able to
gain a majority of the Court to join in an opinion that denounced the goals
of the that committee or its counterpart, the Senate Subcommittee on Inter-
nal Security (“SSIS”), rather than just the procedures followed in pursing
those goals—Watkins v. United States.3 Throughout his entire sixteen-year
tenure as Chief Justice, Warren either dissented from opinions upholding
Congress’s power to punish people for refusing to testify before (or turn
over documents to) HUAC or SSIS,4 or was able to assemble a majority only
for narrow, technical challenges to that power.5
These facts lend themselves to an easy narrative: Warren simply could
not get enough votes to make his sweeping pronouncements in Watkins stick.
That narrative, however, does not explain the last two decisions that the War-
ren Court issued concerning a then-moribund HUAC, Yellin v. United States6
and Gojack v. United States.7 These were also narrow, technical decisions.
And by the time these cases were decided, 1963 and 1966, respectively, War-
ren likely did have ve votes in favor of a free-expression attack on the entire
system of McCarthyite congressional witch-hunts.
This paper charts the Warren Court’s handling of those convicted for
contempt of Congress at the urging of HUAC and SSIS. It concludes with a
speculation concerning why Warren did not push for a sweeping denuncia-
tion of those committees in 1963 or 1966, namely that these cases marked
a return to the Court’s pre-Watkins use of formalism to bring about the
just result.
1 Quinn v. United States, 349 U.S. 155 (1955).
2 Dennis v. United States, 341 U.S. 494 (1951).
3 Watkins v. United States, 354 U.S. 178 (1957).
4 Braden v. United States, 365 U.S. 431 (1961); Wilkinson v. United States, 365 U.S. 399
(1961); McPhaul v. United States, 364 U.S. 372 (1960); Barenblatt v. United States,
360 U.S. 109 (1959).
5 Gojack v. United States, 384 U.S. 702 (1966); Yellin v. United States, 374 U.S. 109
(1963); Grumman v. United States, 370 U.S. 288 (1962) (per curiam); Silber v. United
States, 370 U.S. 717 (1962) (per curiam); Russell v. United States, 369 U.S. 749 (1962);
Deutch v. United States, 367 U.S. 456 (1961); Flaxer v. United States, 358 U.S. 147
(1958); Sacher v. United States, 356 U.S. 576 (1958); Quinn v. United States, 349 U.S.
155 (1955); Emspak v. United States, 349 U.S. 190 (1955); Bart v. United States, 349
U.S. 219 (1955).
6 Yellin v. United States, 374 U.S. 109 (1963).
7 Gojack v. United States, 384 U.S. 702 (1966).
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