On the Dangers of Judicial Deference:
A Look at the Second Red Scare
Jason Siegelin | February 2021
(From top left, clockwise): The Supreme Court in 1936, Justice John Marshall Harlan II, Justice Felix Frankfurter, Sen. Joseph McCarthy
These twilight days constituted America’s Second Red Scare, during which fear of the Soviet threat was approaching its zenith. Americans began to fear other Americans, wondering if the eccentric down the street was a Communist, wondering if that new custodian in the office was a spy, wondering...
Congress wondered too. And in pursuit of alleviating this public angst, it passed the Smith Act of 1940, the Internal Security Act of 1950 (otherwise known as the McCarran Act), and other legislation intended to equip the government with greater ability to monitor and restrict the activities of potentially “un-American” or subversive individuals within the country. Not to mention Joseph McCarthy, the House Un-American Activities Committee (HUAC), and the congressional witch hunts of the 1950s.
Yet it is important to consider the role of another institution in facilitating this questionable, though not entirely unwarranted, activity. That institution is the judiciary. The Supreme Court’s actions during this period of time in American history, lasting from the late 1940s into the early 1960s, were primarily characterized by an almost dogmatic deference to the legislature, at least with regard to issues affecting national security. Such judicial deference, as opposed to judicial activism (the most fitting example of such activism being the Warren Court), is an arguable stance to take, considering the Founders’ original intentions in creating the judiciary.
For instance, in Hamilton’s Federalist No. 78, he argued that, “the courts were designed to be an intermediate body between the people and the legislature...” Advocating for judicial supremacy and independence, Hamilton went on to write that such independence is necessary to prevent “ill humors” and “designing men” from creating “dangerous innovations in government, and serious oppressions of the minor party in the community.” In Marbury v. Madison, Chief Justice Marshall forged the path toward this concept of a strong, supreme judiciary, opining, “It is emphatically the province and duty of the judicial department to say what the law is.”
Contrast this stance with judicial deference and departmentalism, the belief that each branch of the federal government should be able to interpret the Constitution. In his letter to Spencer Roane, Thomas Jefferson, disgusted by unconstrained judicial supremacy, wrote, “the constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary which they may twist and shape in to any form they please.” And Abraham Lincoln, in his first inaugural address, stated that “the people will have ceased to be their own rulers” in the case of an uncontested Court.
I argue that it is the latter of these two judicial philosophies that proved to be extraordinarily dangerous during the Second Red Scare, facilitating the emergence of a dormant authoritarian impulse in the American legal climate during that time period. Constitutional arguments aside, as the balance between national security and the Bill of Rights can be a contentious one at times, we see the pernicious influence of this lenient, deferential jurisprudence in three ways: (1) its facilitation of American “struggle sessions,” (2) its restriction of the freedom of association, and (3) its relevance to a “politics of fear” driving irrational and authoritarian decision-making.
Before considering the dangers of judicial deference, it is important to note that I am not advocating for uncompromising judicial activism in all situations. During economic and public health crises, for instance, state utilization of the police power and the Commerce Clause are often warranted to preserve public safety. While sometimes questionable, state governmental response to the coronavirus pandemic could be seen as a legitimate use of such power, power which does override parts of the Bill of Rights, but is done, at least facially, in the name of the public good. Additionally, judicial deference during the Great Depression, as seen in 1934 in Nebbia v. New York, in 1937 in West Coast Hotel v. Parrish, and in the same year in NLRB v. Jones & Laughlin Steel Corp., enabled the growth of price stability, minimum wages, and employee bargaining power, respectively.
Nonetheless, judicial deference during the Second Red Scare, which involved questions of speech, equal protection, due process, and self-incrimination, justified by the seemingly elusive goal of national security, showed itself to be a dangerous, authoritarian, and ironically un-American instrument of power.
Becoming the Enemy: Barenblatt and the American Struggle Sessions
It is an interesting and pathological case indeed when a nation becomes so concerned with the continuation of its own existence that it begins to take on the authoritarian traits of its rivals.
Yet judicial deference during the Second Red Scare enabled the US to engage in this very behavior, facilitating the passage of repressive legislation and, most germane to the present topic, allowing HUAC to hold public hearings attempting to oust potentially communist dissidents. One Supreme Court case in which the constitutionality of such hearings was upheld was Barenblatt v. United States, decided in 1959, in which the contempt citation of Lloyd Barenblatt, a university professor who refused to answer HUAC’s probing questions about his affiliation with the Communist Party, was upheld.
Writing for the majority, Justice Harlan opined, “his [petitioner’s] position is, in effect, that this particular investigation was aimed not at the revolutionary aspects but at the theoretical discussion of communism. In our opinion, this position rests on a too constricted view of the nature of the investigatory process...” Harlan’s opinion paid very little heed to the legal distinction between the “advocacy or teaching of forcible overthrow as an abstract principle” and “advocacy and teaching of concrete action for the forcible overthrow of the Government,” established by himself three years prior in Yates v. United States. The core of Harlan’s argument was that “the protections of the First Amendment,” unlike those against self-incrimination found in the Fifth Amendment, “do not afford a witness the right to resist inquiry in all circumstances.”
In effectively forcing Barenblatt to speak, the Court backed HUAC and furthered its function of holding what Morton J. Horwitz has called “public hearings” where individuals were “required to engage in public repentance and self-humiliation.”1 Such a description, and such activity as that accomplished by HUAC and approved by the Court, is eerily similar to the struggle sessions that took place during Mao’s Cultural Revolution in China. Victims of these sessions were forced to admit to crimes, many of which they did not commit, in front of a crowd, often filled with peers and family. These sessions served as instruments of public humiliation, with victims forced to wear “dunce caps,” beaten, and sometimes killed, as the goal was to humiliate, oppress, and ostracize those deemed to be political enemies or “rightists.” Considering such a concerning parallelism between HUAC hearings and Maoist struggle sessions, one cannot help but imagine that, during the Second Red Scare, the US was adopting its enemies’ own totalitarian practices.
This is where the dangers of judicial deference become apparent. If the Court had taken a more activist stance in Barenblatt and similar HUAC-deferent cases, American “struggle sessions'' such as those that took place in Congress could have been declared unconstitutional, specifically in utilizing a more flexible, realist view of the First and Fifth Amendments. Now, this is not to say that such a flexible, pragmatic approach is a correct solution to the difficult task of balancing individual rights and national security. Yet it is to say that such a pragmatic approach would have barred Congress from engaging in “struggle sessions” more characteristic of the enemy than of American legislative action.
Therefore, as seen through the Court’s warranting of American struggle sessions initiated by HUAC in Barenblatt, judicial deference can allow the arguably unconstitutional actions of a fearful Congress to infect our polity.
Restriction of Association
The second way in which the dangers of judicial deference became manifest during the Second Red Scare was through the Court’s restriction of the freedom of association. The right to associate, though not explicitly included in the Constitution, was first recognized by the Supreme Court in 1958 in NAACP v. Alabama ex rel. Patterson, wherein the Court labeled as unconstitutional an Alabama attempt to require the NAACP to report a list of members in the state.
One of the clearer instances of harmful judicial deference in the area of free association is Communist Party v. Subversive Activities Control Board, decided by the Supreme Court in 1961. In this case, the Court upheld the McCarran Act, which, among other mandates, required organizations deemed communist to register with the Department of Justice (DOJ) and provide information regarding their members, activities, and financial status. This particular case arose as the result of the Communist Party of the United States’ refusal to register with the DOJ.
In a majority opinion by Justice Frankfurter, whose jurisprudence was notably deferential and focused on judicial restraint, Frankfurter opined, “congressional power… is limited by the First Amendment… But… when existing government is menaced by a worldwide integrated movement which employs every combination of possible means… to destroy the government itself -- the legislative judgment as to how that threat may best be met consistently with the safeguarding of personal freedom is not to be set aside...” In this decision, Frankfurter set a dangerous precedent which, interpreted explicitly, gave Congress the power to restrict association, through required registration, of any “foreign-dominated organizations,” the definition of such organizations left vague.
Constitutional arguments aside, Morton Horwitz, commenting on Communist Party v. SACB, notes that registration brought “real potential harm” to Communist Party members, including barred access to tax exemptions, denial of passports, labeling of mail, the potential for self-incrimination, and certain employment restrictions.2 Some keen lawyers might have thought up an equal protection argument in favor of the Communist Party during the time of the case, due to the inequitable distribution of such burdens.
Nevertheless, there is an even more fundamental harm done by Frankfurter’s chilling of association in Communist Party v. SACB, namely the chilling of academic, political discussion. This chilling conflicts with the “free trade in ideas” sought after by Justice Holmes in his dissent in Abrams v. United States in 1919, where he wrote, “the best truth is the power of thought to get itself accepted in the competition of the market...” By upholding requirements for Communist Party registration, the Court acted to suppress this “free trade in ideas,” by impeding entrance into the Party’s arenas of discussion and “tabooizing” the communist ideology. In addition, Frankfurter’s neglect of the test developed by Harlan in Yates, distinguishing between advocacy of abstract doctrine and advocacy of imminent action voided a great degree of nuance from the Court’s First Amendment jurisprudence, at the very least temporarily.
Yet even beyond this suppression of academic and political discussion, discussion which holds great import in shaping a more perfect country, Frankfurter’s opinion in Communist Party v. SACB, and this broader chilling of association, had implications for racial equality and civil rights in the 1950s and 60s. For instance, in the aforementioned case NAACP v. Alabama, the State of Alabama sought to restrict and monitor the activities of the NAACP by requiring a membership list to be handed over to the state. The fact that a reporting requirement could be potentially utilized to restrict ideation and discussion related to civil rights is unnerving.
Brown v. Board of Education also represents a situation in which freedom of association, while not explicitly mentioned by Chief Justice Warren in his opinion, can be used to more effectively realize civil rights. Warren’s argument can be seen as alluding to this freedom of association, referring to “intangible considerations” unrelated to material equality that affect whether education is equally conferred among the races. These intangible qualities, which Warren emphasizes as a “feeling of inferiority” in black schoolchildren, were rectified by Court-imposed school integration, which is inherently an expansion of associational rights, namely the ability of students, black and white, to associate with one another in public schools. Though Brown, from a textualist and formalist perspective, is often seen as a decision utilizing an inadequate legal argument, it nonetheless expressed an aspiration for association, association which acted to uproot segregation in education.
Thus we see that the denial of freedom of association, or at least the restriction thereof with cumbersome registration requirements, can be seen as a legal impediment to both serious academic and political discussion, as well as civil rights. Herein lies the dangers of Frankfurter’s deferential opinion in Communist Party v. SACB.
A Politics of Fear
Perhaps the core theme that encompasses a great majority of the issues related to judicial deference is its accommodation of a “politics of fear,” in which legislation and legislative activity is sustained out of mistrust, fears of internal subversion, and angst related to the propagation of foreign ideologies. While the source of such defensive legislation is understandable, especially during the Cold War, an excess of fear as an ingredient in policymaking can and does result in the erosion of civil liberties, often viewed by the body politic as a knee-jerk, illegitimate repression of enumerated rights in the name of an amorphous national security. We see this legislative mistrust of the broader public, as well as the unfounded assumption of potentially catastrophic subversive activities, in parts of the Smith Act, which criminalizes advocating the violent overthrow of the government and outlawed membership in any organization devoted to such advocacy.
Perhaps the largest instance in which judicial deference facilitated this politics of fear was Dennis v. United States, decided in 1951, which Morton Horwitz referred to as marking “the low ebb of Supreme Court protection of free speech after World War II.”3 Eugene Dennis and 10 other Communist Party leaders were charged with advocating the violent overthrow of the US government and were convicted under the Smith Act. Chief Justice Vinson, expressing the very mistrust that lies at the core of a politics of fear, opined, “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.” Vinson’s opinion paralleled that of Justice Sanford’s two decades earlier in Gitlow v. New York, which emphasized the dangers of “waiting” until a “single revolutionary spark” turns into a “sweeping and destructive conflagration.” Again the Court makes no mention of Yates and the necessity of a nuanced distinction between advocacy of abstract doctrine as opposed to action. Such a lack of nuance appears to be a hallmark of fearful jurisprudence and an acquiescence to the demands of the legislature.
While rooted in an understandable striving for national security, Dennis is a fearful decision predicated on a fundamental legislative mistrust of common American loyalty. One cannot help but question the health and level of social cohesion in a nation where representatives and justices determine and enforce the law based on the belief that, without such law, a “conspiracy” among the people could easily turn into a “destructive conflagration.” Such a rift between the ruling class and the ordinary citizenry is disappointing and unsustainable in a free society. Countering the logic expressed in Dennis, an entry by Columbia Global Freedom of Expression comments, “the democratic notion of free speech is based on the idea that vibrant democracies can tolerate such discussion and facilitate peaceful transitions of power.” As previously mentioned, fearful judicial decisions such as Dennis injected our polity with the same authoritarian, restrictive ethos from which the Court was ironically attempting to defend American society during the Second Red Scare.
This fear, and more broadly the dominating presence of emotion in lawmaking, is precisely what Hamilton warns against in Federalist No. 78. The judiciary, as a supreme vehicle for legal interpretation, Hamilton argued, was intended to “guard the Constitution and the rights of individuals from the effects of those ill humors” associated with “designing men,” in this case fearful legislators.
Seen through this lens, Dennis, though rooted in a deference to national security, can be seen as judicial neglect of this original task specified by Hamilton. Thus we see how judicial deference, as opposed to the judicial supremacy and activism described by the Federalists and exemplified in Marbury, respectively, have the potential to lead the country away from its founding documents and down a death spiral of legislative fear and mistrust.
The question posed to us now is simple. Do we, as Americans, want those twilight days to come back? Those twilight days when fear tainted the world red and the Bill of Rights was swept under the bed beneath which the individual was hiding? Or will we maintain an open society where truth-seeking is encouraged and detestable ideas are dismantled in the public square? It’s our job to ensure the latter through exercising a more skeptical approach to judicial deference, endorsing a less ossified view of the Bill of Rights, and understanding that the judiciary is intended to place a check on the tentative, arguably unconstitutional impulses of a popular legislature.
uring those twilight days, twilight days when individuals lived like ants beneath the omnipresent shadow of nuclear threat, during those days fear took on a different meaning. Fear drove mistrust, mistrust drove paranoia, and paranoia drove draconian legislation in the name of national security.