SUPREME COURT OPINIONS: The Vinson Court (1946 - 1953)


OOOOFor each opinion, the author's name name is given first and in full, the following justices joining in the opinion. Concurring or separate opinions are those which agree with the result of the Court's opinion but differ with the reasoning, larger implications, or simply wish to add an aspect not touched on by the Court. Dissenting opinions, of course, are those which disagree with the Court's ruling. There may even be several dissenting opinions, depending on the nature of the several justices' disagreement.

1951 Dennis v. United States, 341 U.S. 494

Opinion: C.J. Fred M. Vinson, J. Reed, J. Burton, J. Minton
Concurrance: J. Felix Frankfurter
Concurrance: J. Robert H. Jackson
Dissent: J. Hugo L. Black
Dissent: J. William O. Douglas
OOODennis upheld convictions for conspiring to organize a Communist cell in order to "teach or advocate" the overthrow of the government by force or violence, a violation of the Smith Act, a Cold War statute making such advocacy, or a conspiracy to so advocate, illegal. The convictions and the Act were challenged as unconstitutional under the First Amendment. The decision is also a discussion as to the relevance of the "clear and present danger" test — a threshold for restriction of speech — first enunciated by Justice Oliver Wendell Holmes in the 1919 decision, Schenk v. United States. Lastly, it is a debate on the actual danger of Communism.
OOOIn the opinion, Vinson first established that Congress had a right to pass laws in order to protect democratic government — a proposition no one questioned. The question was whether it was an illegal restriction of speech. Vinson and the majority answered that it was not. The Act, he pointed out, did not prohibit mere discussion of ideas, even of the idea of overthrowing the government. What it prohibited was advocacy of that idea. To Vinson and the majority such advocacy, in the context of Communism, represented a danger clear and present enough to them to warrant restrictions on speech and validate the Act. Moreover, Vinson found the fact irrelevant that no actual advocacy had taken place, but only a conspiracy to form a group to do so. As he wrote: "It is the existence of the conspiracy which creates the danger...If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added."
OOOIn a characteristic line of argument, Frankfurter rejected the clear and present danger test as an example of an over-reaching judiciary, and urged the Court's deference for acts of Congress. Framing the issue as a simple balance of competing rights and interests — free speech and the preservation of democratic government — Frankfurter opined that it was for the people in the person of their representatives to strike that balance, not the Court. So long as there was a rational basis for a law and its enforcement met the standards of proof and due process, the Court was not to substitute its own opinion of the law's wisdom for that of the people and their representatives.
OOOJackson was for keeping the clear and present danger test, but only where it was relevant. For the Anarchists of 1919 who dealt in specific acts of violence, it made sense. For the Communists, whose strategy involved the slow but inexorable infiltration and undermining of democratic society, it did not. To Jackson, waiting for a clear and present danger was to await the final act in a monstrous tragedy. Jackson further reminded the court that the petitioners were tried and found guilty of conspiracy outside any question of speech, pointing out that, "The basic rationale of the law of conspiracy is that a conspiracy may be an evil in itself, independently of any other evil it seeks to accomplish." Jackson's reliance on conspiracy represented a sort of end run around both the free speech issue and the dissidents' objection that no overt act had been proven, or even charged, against the petitioners.
OOOIn dissent, Black pointed out that conviction for conspiracy to advocate the overthrow of the government, but not the actual act of advocacy, was an unconstitutional prior censorship of speech. Moreover, even if the conviction had been for actual advocacy, it would not meet the clear and present danger test, to which Black steadfastly adhered. He pointedly rejected Frankfurter's rational basis test: "So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress' or our own notions of mere "reasonableness." Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those "safe" or orthodox views which rarely need its protection."
OOODouglas was also quick to point out that no overt act of advocacy had been proven or charged against the petitioners, but only a conspiracy to do so. Taking Vinson's difference between legal discussion and illicit advocacy, Douglas found the nexus of guilt to be intent, which to Douglas was troubling in the context of speech and ideas: "The crime then depends not on what is taught, but on who the teacher is. That is to make freedom of speech turn not on what is said, but on the intent with which it is said. Once we start down that road, we enter territory dangerous to the liberties of every citizen." And later: "We then start probing men's minds for motive and purpose; they become entangled in the law not for what they did, but for what they thought; they get convicted not for what they said, but for the purpose with which they said it." Moreover, unlike many on the Court, Douglas was inclined to privilege freedom of speech over other freedoms, and maintain a higher standard on its restriction. The clear and present danger test — strictly enforced — was adequate. And on that note, unlike Vinson and Jackson, who saw Communism as a serious and immanent danger, Douglas saw them as no threat whatsoever: "Communism in the world scene is no bogeyman; but Communism as a political faction or party in this country plainly is....Some nations less resilient than the United States, where illiteracy is high and where democratic traditions are only budding, might have to take drastic steps and jail these men for merely speaking their creed. But in America, they are miserable merchants of unwanted ideas; their wares remain unsold." For Douglas, the empty threat of domestic Communism was best met by more speech, not less.

1952 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

Opinion: J. Hugo Black
Concurrance: J. Felix Frankfurter
Concurrance: J. William O. Douglas
Concurrance: J. Robert H. Jackson
Concurrance: J. Felix Frankfurter
Concurrance: J. Tom C.Clark
Concurrance: J. Harold H. Burton
Dissent: C.J. Fred M. Vinson, J. Stanley F. Reed, J. Sherman Minton
OOOYoungstown turns on the question of the President's power to seize property within the context of a national emergency and tested both the relationship of that office to Congress; and the meaning of the President's constitutional powers as Commander-in-Chief and his responsibility for the faithful execution of the laws.
OOOIn 1952, faced with an impending strike in the steel industry, President Truman instructed his Secretary of Commerce to seize and operate the the mills based on his Constitutional role as Commander in Chief and executor of the nations laws. A number of mills challenged the seizure, and the case came before the Court where a majority rejected the President's argument and found the seizure unconstitutional.
OOOWriting for the majority, Justice Black pointed out that the President acts legitimately either from his own constitutional powers or as executor of laws passed by Congress. As for the latter, it was clear to the majority that Congress, through the Labor Management Relations Act of 1947 (the Taft-Hartley Act), had made no provision for the seizure of industries threatened with shut-down by strike; in fact, the legislative history of the act made it quite clear that Congress had considered such action, and explicitly and overwhelmingly rejected it. As for the President's power as commander-in-chief, even though a shut-down of the steel industry might affect prosecution of the Korean War, the mills did not operate in a theater of war, and so the President's powers as C in C did not obtain. As for the President's responsibility to faithfully execute the laws of the nation, Black pointed out that the very words themselves make clear that the President is not a law-maker, which is the exclusive power of Congress. Where Congress has made law, as they did with the Taft-Hartley Act, it is not for the President to ignore or overrule it.
OOOIn their concurrances, both Frankfurter and Douglas argued for the rule of law — in this case, the determination of Congress as set out in the LMRA — over even what might be wise or expeditious actions by the President during an emergency. Frankfurter wrote: "The utmost that the Korean conflict may imply is that it may have been desirable to have given the President further authority, a freer hand in these matters. Absence of authority in the President to deal with a crisis does not imply want of power in the Government. Conversely, the fact that power exists in the Government does not vest it in the President. The need for new legislation does not enact it. Nor does it repeal or amend existing law." Douglas, believing that the power of seizure was an exclusively legislative one, echoed Frankfurter's opinion by first quoting Justice Brandeis: "'The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy'", and then adding, "We therefore cannot decide this case by determining which branch of government can deal most expeditiously with the present crisis. The answer must depend on the allocation of powers under the Constitution."
OOOAmong other things, Justice Jackson addressed the question of Truman's claim to "war powers", and pointed out the inherent dangers intendant on such a claim: " is said, he has invested himself with "war powers." I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may, in fact, exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture." And he later added: "No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."
OOOIn dissent, Justice Vinson cited the Mutual Security Act of 1951 and the Defense Production Act of 1950 as "legislative programs" which the President was constitutionally bound to uphold, and which thereby justified his actions. (The majority denied that either act had superceded the LMRA, nor conferred any seizure powers on the President.) He argued that the President was correct in taking action in an emergency where speed was essential: "...if the President has any power under the Constitution to meet a critical situation in the absence of express statutory authorization, there is no basis whatever for criticizing the exercise of such power in this case", pointing out that that was precisely the intent of the Framers in creating the Executive. Citing Hamilton — "Energy in the Executive is a leading character in the definition of good government." — he observed: "It is thus apparent that the Presidency was deliberately fashioned as an office of power and independence. Of course, the Framers created no autocrat capable of arrogating any power unto himself at any time. But neither did they create an automaton impotent to exercise the powers of Government at a time when the survival of the Republic itself may be at stake." As evidence of that intent, Vinson cited the many times in history where Presidents had taken independent action of questionable constitutionality which were later upheld by the courts or approved by Congress. Finally, in defense of the majority's charge that Truman's actions constituted an executive encroachment on legislative powers, Vinson reminded the Court that Truman's intent was only to act in the breach until Congress, itself, acted on the matter; and that the President had reported his actions and the reasons for it them the morning after the seizure. In short, the dangers alluded to by the majority were straw men, and the Court had needlessly and dangerously bound the hands of the President to act in a national emergency.