Evening star., 1951-05-01
Wordy Disagreement

The Supreme Court yesterday lent substance
to the view that the law is what the judges say
1t is The layman can only wish that the judges
would say it in language that he can understand.
One clear fact emerges from what Justice
Jackson labeled the courts "wordy disagree
ment" The discharge of Dorothy Bailey from
her Government job has been sustained. Justice
Clark did not participate, and the remaining
Judges divided 4-to-4 The effect is to uphold the
Federal loyalty program as applied in Miss
Bailey's case, but since no opinions were written
there is no way of telling how the evenly divided
court arrived at it's conclusions, pro or con.
The court also decided another and related
case bearing on the loyalty program-that of
three organizations protesting their inclusion on
the Attorney Generals subverSive list. And the
contrast between the form of this decision and
that in the Dorothy Bailey case may best be
described as overwhelming.
Six separate opinions, consuming 96 pages,
were written. The division was to 5-to-3. Justice
Burton wrote the majority opinion, and although
Justice Douglas was listed as joining him, the
fact is that not another Judge on the court was
in complete agreement with Justice Burton's
position. That position was the narrowest that
he could have taken It turned on technicality,
and the gist of it was that the complaining
organizations were entitled to judicial review Of
the Attorney Generals action in putting them
on his list It might also be inferred from what
was said that the Attorney General henceforth
will have to grant some kind of hearing before
listing an organization as subverSive.
In word, it is safe to say that no layman
and probably not many lawyers can tell from
this rash of opinions just where the court stands
on the important queStions-aS distinguished from
technical questions-involved in the listing of
allegedly subversve organizations.
The same comment applies to the action in
the Dorothy Bailey case. Obviously one of the
hve judges who ruled against the Government
in the organizational case sided with the Gov
eminent in the Bailey case. Justice Jackson
reveals in his concurring opinion in the organiza-
tional case that the court rejected "the claim
that the individual Miss Bailey has hearing
rights" Except for that, however, one is left
in the dark as to the courts conclusions and the
reason for them in the case of Miss Bailey,
which certainly was not less important than
the organizational case which produced six
separate opinions from eight judges
The legal effect of the action in the Bailey
case is to leave undsturbed the 2-to-1 ruling
against her in the District Court Of Appeals
That decision now becomes the law, and its
significant conclusions, as expressed by Judge
Prettyman, are these: at is our clear opinion
that the President, absent congressional restric-
ton, may remove from Government service any
person of whose loyalty he is not completely con-
vinced. He may do SO without assigning any
reason and without giving the employe any
explanatory notice. If, as a matter of policy, HI
chooses to give the employe general descrip-
ton of the information which concerns him anc
to hear what the employe has to say, he does not
thereby strip himself of any portion of his con-
stitutional power to choose and remove. w.
conclude that the, executive order before us ane
the proceedings under it violated no congress
sional limitation upon the executive power o
removal that no constitutional right was In
volved in this nonappointment or dismissal