Evening star., 1950-09-27
Equal Justice Under Law

In permitting ten Communist leaders in New
York to remain free on bail, pending anal deci-
sion on their appeal from conviction, Justice
Jackson has applied the same principle that
persuaded majority of the Ninth Circuit Court
of Appeals in California recently to like action in
the case of Harry Bridges.
It is important, especially in these feverish
times, to understand that principle, not to con-
fuse it with some emotional idea that these
Communists are being pampered by the courts
through unrealistic legalism. One expression OF
this principle is engraved in marble above the
main portal of the Supreme Court Building.
Preservation of Equal Justice Under Law"
is more important than the fact that 1t may
provide shelter for some Communists.
There are differences between the Bridges
case in California and the case of the Communist
leaders in New York. Bridges was convicted OF
lying when he swore he was not Communist
He was not convicted of being Communist. The
party leaders were convicted of conspiring to
advocate and to teach violent overthrow OF the
United States Government and to organize the
party for that purpose. They were not convicted
of being Communists, and the Government did
not charge them with any overt act to effect the
purpose of the conspiracy aside from incidents
connected with the organization and teaching OF
which they were convicted.
In both the Bridges case and the Communist
conspiracy case substantial questions of law were
raised by the convictions which entitled the
defendants to appeal. When such questions exist,
1t is practice under judicial rule to allow bail until
the defendants have exhausted their rights OF
appeal Justice Jackson emphasizes that bail
after conviction however, is not right but rests
always in sound judicial discretion. The rule on
bail guards against the possibility that defend
ant might be kept imprisoned during the course
of his appeal and some court of last resort then
find that he was wrongfully convicted and
imprisoned.
After the outbreak of war in Korea the
Government moved in both cases to have bail
revoked and to send Bridges and the Communist
leaders to jail. The Governments contentious
were based on what these people were doing and
might do to affect injuriously the interests Of the
country. Neither Justice Jackson norsthe Cali
fornia court was convinced that the actions
charged to the defendants after their conviction
did in fact endanger the interests of the country
While these actions were cited by Government
as justification for revocation of bail, they were
not alleged by Government to be criminal in
themselves nor were they the actions for which
the defendants had been convicted in the first
place. The Governments case seemed to rest on
the conclusion that as these people were Com
muniStS, they were capable of working serious
injury and should therefore be locked up.
The California court referred to this conclu-
sion, as basis for legal action, as being "as
startling as it is novel," Justice Jackson, In his
opinion, said that "If assume that defendants
are disposed to commit every opportune disloyal
act helpful to Communist countries, 1t is still
difficult to reconcile with traditional American
law the falling of persons by the courts because of
anticipated but as yet uncommitted crimes Inn
prisonment to protect society from predicted but
this country and so fraught with danger of
excesses and injustice that I am loath to resort
to it, even as discretionary judicial technique
to supplement conviction of such offenSes as
those of which defendants stand convicted"
The point to be remembered in all this is
that if the courts could be used by the executive
branch of Government to revoke bail Of Commu-
nists and send them to jail on the ground that
they may commit some future injury, the courts
could be so used in other circumstances against
other citizens. AS Justice Jackson states it 80
well g. the right of every American to equal
treatment before the law is wrapped up in the
same constitutional bundle with those of these
Communists If in anger or disgust with these
defendants we throw out the bundle, we also
cast aside protection for the liberties of more
worthy critics who may be in opposition to the
Government on some future day."