# United States v. Railroad Barnett/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Black Goldberg
United States Supreme Court
376 U.S. 681
United States v. Railroad Barnett
Argued: Oct. 21 and 22, 1963. --- Decided: April 6, 1964
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
For many reasons I cannot agree with the Court's opinion. In the first place, Congress has never expressly given the Federal Courts of Appeals jurisdiction to try and punish people for criminal contempt of court, and I am unwilling to hold that such a power exists in these courts in the absence of a clear and unequivocal congressional grant. The business of trial courts is to try cases. That of appellate courts is to review the records of cases coming from trial courts below. In my judgment it is bad for appellate courts to be compelled to interrupt and delay their pressing appellate duties in order to hear and adjudicate cases which trial courts have been specially created to handle as a part of their daily work. And in particular, I believe that it is highly disruptive and downright injurious to appellate courts for them to attempt to take over and try criminal contempt cases, surcharged as these cases almost always are with highly emotional quarrels. Compare, e.g., cases cited in Green v. United States, 356 U.S. 165, 199, n. 8, 78 S.Ct. 632, 651, 2 L.Ed.2d 672 (dissenting opinion). Appellate courts are too useful a part of our judicial system to be subjected to such unnecessary ordeals. I say unnecessary because trial courts are as qualified and capable to try criminal contempt cases as they are to try others.
Assuming, however, that a United States Court of Appeals does have jurisdiction to try criminal contempt cases, I agree for the reasons set out in Part A of my Brother GOLDBERG's dissenting opinion that Congress has commanded that defendants in those cases be accorded a right to trial by jury. His powerful arguments on this point stand unanswered by the Court. Even in construing statutes and rules governing civil cases we have taken pains, as Congress commanded, to resolve all doubts in favor of trial by jury as guaranteed by the Seventh Amendment. We should certainly be equally alert to construe statutes governing trials for criminal contempt so as to protect the right of jury trial guaranteed for the 'Trial of all crimes' by secton 2, cl. 3 of Article III of the original Constitution and for 'all criminal prosecutions' by the Si th Amendment.
I think that in denying a jury trial here the Court flies in the face of these two constitutional commands. My reasons for this belief were stated in Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 648, 2 L.Ed. 672 (dissenting opinion), and in other opinions cited in the margin which I have written or to which I have agreed. No provisions of the Constitution and the Bill of Rights were more widely approved throughout the new nation than those guaranteeing a right to trial by jury in all criminal prosecutions. Subsequent experience has confirmed the wisdom of their approval. They were adopted in part, I think, because many people knew about and disapproved of the type of colonial happenings which the Court sets out in its appendix-cases in which, as reported by the Court, people had been sentenced to be fined, thrown in jail, humiliated in stocks, whipped, and even nailed by the ear to a pillory, and punishments imposed by judges without jury trials. Unfortunately, as the Court's opinion points out, judges in the past despite these constitutional safeguards have claimed for themselves 'inherent' power, acting without a jury and without other Bill of Rights safeguards, to punish for criminal contempt of court people whose conduct they find offensive. This means that one person has concentrated in himself the power to charge a man with a crime, prosecute him for it, conduct his trial, and then find him guilty. I do not agree that any such 'inherent' power exists. Certainly no language in the Constitution permits it; in fact, it is expressly forbidden by the two constitutional commands for trial by jury. And of course the idea that persons charged with criminal offenses such as 'crimes' contempt are not charged with 'crimes' is a judicial fiction. As I said in Green, I think that this doctrine that a judge has 'inherent' power to make himself prosecutor, judge and jury seriously encroaches upon the constitutional right to trial by jury and should be repudiated.
In Green the Court affirmed a threeyear S.Ct. 632, 648, 2 L.Ed.2d 672 (dissenting But now in note 12 of its opinion in the present case the Court has inserted an ambiguous statement which intimates that if a sentence of sufficient 'severity' had already been imposed on these defendants, a majority of the Court would now overrule Green in part, by holding that if a criminal contempt charge is tried without allowing the defendant a jury trial, punishment is constitutionally limited to that customarily meted out for 'petty offenses.' I welcome this as a halting but hopeful step in the direction of ultimate judicial obedience to the doubly proclaimed constitutional command that all people charged with a crime, including those charged with criminal contempt, must be given a trial with all the safeguards of the Bill of Rights, including indictment by grand jury and trial by jury.
Whatever is included within the scope of 'petty offenses,' certainly if the present defendants committed the acts with which they are charged, their crimes cannot be classified as 'petty,' but are grave indeed. These defendants nevertheless, like others charged with crimes, should have their cases heard according to constitutional due process, including indictment and trial by jury. Nothing with criminal offenses such as criminal which Article III and our Bill of Rights guarantee. It is high time, in my judgment, to wipe out root and branch the judge-invented and judge-maintained notion that judges can try criminal contempt cases without a jury. It will be a fine day for the constitutional liberty of individuals in this country when that at last is done.

## Notes

* ↑ What I have said above, of course, has no application whatever to the useful practice, authorized by statute, by which circuit judges sometimes sit on District Courts and district judges sometimes sit on Courts of Appeals. See 28 U.S.C. §§ 2284, 291, 292.
* ↑ See Dairy Queen, Inc., v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44; Beacon Theatres, Inc., v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988. See also Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691. The Seventh Amendment provides:
* ↑ See also, e.g., In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434; In re Murchison, 349 U.S. 133; Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11; In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; Ungar v. Sarafite, 376 U.S., at 592, 84 S.Ct., at 851 (DOUGLAS, J., dissenting); Piemonte v. United States, 367 U.S. 556, 565, 81 S.Ct. 1720, 1726-1727, 6 L.Ed.2d 1028 (DOUGLAS, J., dissenting); Levine v. United States, 362 U.S. 610, 620, 80 S.Ct. 1038, 1044 1045, 4 L.Ed.2d 989 (dissenting opinion); Brown v. United States, 359 U.S. 41, 53, 79 S.Ct. 539, 548, 3 L.Ed.2d 609 (WARREN, C.J., dissenting); Yates v. United States, 355 U.S. 66, 76, 78 S.Ct. 128, 134, 2 L.Ed.2d 95 (DOUGLAS, J.,
* ↑ See Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 648, 2 L.Ed.2d 672 (dissenting opinion), and opinions cited, supra, n. 3.
* ↑ 'Some members of the Court are of the view that, without regard to the seriousness of the offense, punishment by summary trial without a jury would be constitutionally limited to that penalty provided for petty offenses.' Ante, p. 695.
* ↑ Of course, 'it should be emphasized that we are not at all concerned with the power of courts to impose conditional imprisonment for the purpose of compelling a person to obey a valid order. Such coercion, where the defendant carries the keys to freedom in his willingness to comply with the court's directive, is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees. * * * In my judgment the distinction between conditional confinement to compel future performance and unconditional imprisonment designed to punish past transgressions is crucial, analytically as well as historically, in determining the permissible mode of trial under the Constitution.' Green v. United States, 356 U.S. 165, 197-198, 78 S.Ct. 632, 650, 2 L.Ed.2d 672 (dissenting opinion). It was this kind of conditional imprisonment for the purpose of compelling obedience to a valid court order that was involved in Watson v. Williams, 36 Miss. 331, which the Court stresses so heavily at the concluding part of its opinion. In that Mississippi case Watson refused to deliver property to minor children whose guardian he had been. The lower court had entered an order 'committing the plaintiff to the jail of Lowndes county for safe keeping, until he comply with the order of the court.' Id., 36 Miss. at 340. (Emphasis added.) The Supreme Court of Mississippi dismissed the appeal for want of jurisdiction. As I said in Sacher v. United States, 343 U.S. 1, 22, 72 S.Ct. 451, 96 L.Ed. 717 (dissenting opinion), with respect to this kind of conditional civil contempt order, I agree with this statement of Mr. Justice Holmes: 'I would go as far as any man in favor of the sharpest and most summary enforcement of order in court and obedience to decrees, but when there is no need for immediate action contempts are like any other breach of law and should be dealt with as the law deals with other illegal acts.' Toledo Newspaper Co. v. United States, 247 U.S. 402, 425-426, 38 S.Ct. 560, 566, 62 L.Ed. 1186 (dissenting opinion).
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