Evening star. [volume] (Washington, D.C.) 1854-1972, 1958-04-12
Senator Dissents

Jury.")
Your recent editorial Trial
by Jury" inquiries What will
the liberals say now?" to
the dissent of Mr.. Justice
Black in the decision Of the
Supreme Court upholding the
criminal contempt convic-
tons OF two Communist ON
Gals.
The opinion by Justice
Black, joined in by Chief
Justice Warren and Justice
Douglas, presented brilliant
arguments in favor of the
proposition that a criminal
contempt for willful refusal
to obey a lawful court order
should require q jury trial
rs . crime" within the
meaning Of Article III and
the Sixth Amendment Of the
Constitution. 1t is my view
that the opinion and reason
ing Of these three great
judges are entitled to great
weight and respectful anal
ysis.
However, a majority Of five
justices disagreed with them
and for the reasons similar
to those put forward by many
Of us who opposed the So
called Jury trial amend
ment" to the civil rights bill
last year.
The right to trial by Jury
was not the main issue in the
case decided by the Supreme
Court. The convicted defend
ants failed to surrender to
serve their sentence as re-
CURED by a lawful order Of
the court Of which they had
notice. They were convicted
OF criminal Il. e. willfuD con-
tempt and sentenced. They
claimed q constitutional right
to indictment by q grand
jury, because criminal con-
tempt was an Infamous
crime" within the meaning
Of the Fifth Amendment.
The jury trial argument came
into the case only secondarily
with the claim that criminal
contempt should be con-
sidered a crime under two
other constitutional provi-
Sions.
= The Supreme Court prop
erly held that Ariminal con-
tempt Of court is not and
never has been a crime with
In the meaning Of those other
constitutional provisions.
Justice Harlan (for the
majority wrote: The state
ments Of this court in q long
and unbroken line of deci-
sions involving contempts
ranging from misbehavior in
court to disobedience of court
orders establish beyond per-
adventure that criminal con-
temptS are not subject to
Jury trial as a matter Of con-
stitutional right.
The principle that crimi-
nal contempts Of court are
not required to be tried by a
jury under Article III or the
Sixth Amendment Is firmly
rooted in our traditions"
Justice Frankfurter (con-
curring) declared: What is
indisputable is that from the
foundation of the United
States the constitutionality of
the power to punish for con-
tempt without the interven-
ton Of q jury has not been
doubted.
ITO say that everybody on
the court has been wrong for
$50 years and that that which
has been deemed part Of the
bone and sinew Of the law
should now be extirpated is
quite another thing. Deci-
sion-making Is not q mechan-
ical process. but neither is
this court an originating law
maker"
As q liberal" I hold to the
view that the courts are the
final guardians Of individual
liberty. If lawful court or
ders are permitted to be
fiouted. that protection to all
citizens would be eroded into
determination. To interpose
q jury between the court and
the person who has willfully
and knowingly diSregarded
the orders Of the court would
be to imperil the authority OF
the courts and their ability
to exact compliance. This is
all the more so when the
court order-as under the
civil rights bill-would be to
protect q constitutional right.
I believe that appeal from
the orders Of lower Federal
courts is the remedy for de-
PENDANTS who disagree with
court orders. II they choose
to defy those orders. they are
subject to contempt proceed