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Robert D. Parmet: Review of Robert M. Lichtman's "The Supreme Court and McCarthy-Era Repression: One Hundred Decisions" (Illinois, 2012)

Robert D. Parmet is Professor of History at York College of the City University of New York.

Irving Adler was one of 378 New York City teachers ousted for violating the state’s Feinberg Law (1949), which made past or present membership in the Communist Party sufficient ground for dismissing public school teachers.  Fifteen years after Adler’s removal, in Keyishian v. Board of Regents (1967), the United States Supreme Court declared that law unconstitutional, enabling his reinstatement and subsequent receipt of a pension. Ensnared in the Second Red Scare, a period dominated by the presence of Senator Joseph McCarthy and the fear his presence generated, Adler and other loyal Americans were injured in many ways.

Robert M. Lichtman, a lawyer who has already written on his subject, having co-authored Deadly Force: Harvey Matusow and the Informer System in the McCarthy Era, demonstrates that the Supreme Court itself was no exception. Between October 1949 and October 1961, he found, “the Court, under attack and seeking to placate public opinion and avoid court-curbing legislation, employed a wide range of strategies” to protect “unpopular dissenters ... while avoiding more confrontational decisions that would have jeopardized its independence.” Simultaneously it fought public school segregation, making it highly vulnerable to attack. Thus, the Court and its chief justices, from Fred Vinson to Earl Warren and Warren Burger sailed into the prevailing political winds, and in roughly one hundred decisions, kept their ship from breaking apart.
In his highly detailed account, Lichtman traces the Court’s winding path through the era.  First, he briefly reviews the historical background of judicial independence, beginning with the Founding Fathers, and then periods of “political repression,” notably the World War I era. He then concisely describes the onset of the Cold War with the Soviet Union and the perception of an internal Communist threat, reinforced by the Supreme Court under the direction of Chief Justice Fred Vinson, most notably in Dennis v. United States (1951), which upheld the convictions of leaders of the Communist Party USA for conspiracy aimed at the forcible overthrow of the United States Government. 

Lichtman also discusses the constitutionality of the Taft-Hartley Act of 1947, in particular Section 9(h), which included a non-communist affidavit that “made it next to impossible” for members of the Communist Party “to hold union office.” This affidavit was one the most controversial provisions in a law much despised by organized labor. Consistent with his overall approach, Lichtman discusses the Doud decision of 1950, which upheld its constitutionality. His analysis is clear and concise, but confined to the Court ruling, omitting the broader story of Taft-Hartley and the heat it generated. Lichtman notes that Justice Hugo Black, who was outvoted, regarded the affidavit as a violation of the First Amendment, but missing is a discussion of the heat and firestorm it generated outside the Court. Elsewhere in the book, Lichtman describes additional battles over this issue, concerning such unions as the Fur and Leather Workers and Mine, Mill and Smelter Workers.

In an account that includes a comprehensive “Index of Supreme Court Decisions,” it is not surprising that even the members of the Court receive relatively brief biographical sketches.  But in discussing the justices who resisted the repressive politics of the era, such as Hugo Black, William O. Douglas, Arthur Goldberg, and Earl Warren, the pictures drawn are sharp. For example, Lichtman notes that Goldberg’s vote helped to reverse the conviction of Theodore R. Gibson, a Miami NAACP official. In Florida, a committee in quest of Communists in the NAACP had demanded he produce the organization’s membership list. When he refused to comply, he was cited and convicted for criminal contempt. After first sustaining Gibson’s conviction by a 5-4 vote, the Court, led by Goldberg, later reversed it, also by 5-4. Lichtman is clear on this matter, but in noting that Goldberg was part of an alliance on the Court with Black, Douglas, Warren, and William Brennan, he leaves the reader wanting additional information.

Lichtman’s focus, therefore, is clearly on the Supreme Court’s decisions and how that body made its way through a difficult period. Accordingly, he does not venture far from those rulings. As a comprehensive reference work on the Court, with an excellent bibliography and abundant endnotes, it should prove invaluable.