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Fear and Loathing in Constitutional Decision-Making, 2005 Wis University of Missouri School of Law Scholarship Repository Faculty Publications 2005 Fear and Loathing in Constitutional Decision- Making Christina E. Wells University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Judges Commons, and the Law and Psychology Commons Recommended Citation Christina E. Wells, Fear and Loathing in Constitutional Decision-Making, 2005 Wis. L. Rev. 115 (2005) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. FEAR AND LOATHING IN CONSTITUTIONAL DECISION-MAKING CHRISTINA E. WELLS* Introduction .................................................................... 116 I. Dennis in Historical Context .......................................... 120 A. Domestic Communists Pre-World War II ..................... 121 B. Post-World War II: Domestic Communism as a National Security Issue ...................................................... 127 C. The Popular Image of Domestic Communists: Myth and Reality .................................................. 133 II. Dennis v. United States ................................................ 141 A . The Trial ........................................................... 141 B. Appeal to the Second Circuit .................................... 148 C. The Supreme Court Weighs In .................................. 152 III. The Psychology of Threat Perception ............................... 158 A. The Psychology of Threat Perception .......................... 159 1. Threat Perception and Risk Assessment ................. 159 2. Threat Perception and Intergroup Conflict: The Role of Stereotypes and Prejudice ................... 163 3. The Influence of Social Dynamics ........................ 168 4. Implications for Law and Policy .......................... 170 B. Grounding History in Psychology .............................. 172 1. Threat Perception and Risk Assessment ................. 172 2. Threat Perception, Intergroup Conflict, and Prejudice ................................................ 175 3. Social Influences and Anticommunism ................... 178 IV. Threat Perception in the Dennis Courts ............................. 181 A. The Trial Court. ............................. 181 1. Risk Assessment ............................................. 182 2. Prejudice ...................................................... 185 B. Judge Hand and the Second Circuit Opinion .................. 189 C. The Supreme Court Opinions ................................... 194 V. Legal Tests and the Dennis Phenomena ............................. 201 * Enoch N. Crowder Professor of Law, University of Missouri-Columbia School of Law. I am grateful to Dale Whitman, Adrienne Stone, Geof Stone, Jean Sternlight, James Stellios, Jennifer Robbennolt, Richard Reuben, John Mollenkamp, Ron Krotoszynski, and Kent Gates for their thoughtful comments on earlier drafts of the paper. My thanks also to faculty workshops at the University of Kansas and the University of Missouri, and to the symposium at the Australian National University, where I presented earlier versions of this Article. I am indebted to Sarah Baron, Eric Bohl, Michael Held, Mark Lyons, and Jennifer Pugh, whose research and willingness to criticize dramatically improved the Article. Finally, I am grateful for the generous financial support provided by the University of Missouri Law School Foundation. HeinOnline -- 2005 Wis. L. Rev. 115 2005 WISCONSIN LAW REVIEW A. Clear and Present Danger and the Facilitation of Psychological Biases .............................................. 201 B. The Supreme Court's Modem Approach: Tiers of Scrutiny .................................................. 207 C. Some Thoughts on Possible Solutions ......................... 214 V I. Conclusion ............................................................... 222 INTRODUCTION "Fearsof alien ideologies have frequently agitatedthe nation and inspired legislation aimed at suppressing advocacy of those ideologies. At such times the fog of public excitement obscures the ancient landmarks set up in our Bill of Rights. Yet then, of all times, should this Court adhere most closely to the course they mark. "' "Some legal doctrines are more importantas manifestations of attitude than as guides to decision[s] in specific cases. n2 In times of national crisis, passion and fear often grip the country, thereby causing oppressive actions toward allegedly threatening groups or individuals. Such actions, while lamentable, are nevertheless understandable, perhaps even predictable. Faced with a threat to the nation, fear and prejudice generate demand for action. Congress and executive officials respond, often to the detriment of civil liberties.3 When those actions are challenged in court, however, we expect judges to respond differently. Judges are supposed to be above the political and emotional fray, dispassionately resolving disputes regarding civil liberties with reference only to the law and facts of the case.4 1. Am. Communications Ass'n v. Douds, 339 U.S. 382, 453 (1950) (Black, J., dissenting) (footnote omitted). 2. Wallace Mendelson, Clear and Present Danger-FromSchenck to Dennis, 52 COLUM. L. REv. 313, 313 (1952). 3. See David Cole, Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis, 101 MICH. L. REv. 2565, 2590-92 (2003) (recounting the history of congressional and executive responses to crises); Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 YALE L.J. 1011, 1035-42 (2003) (noting that times of crisis cause people and government representatives to support draconian action against suspected groups); Christina E. Wells, Questioning Deference, 69 Mo. L. REV. 903, 909-21 (2004) (discussing public and government responses to perceived threats during World War I, World War II, and the Cold War). 4. See, e.g., Gordon Bermant and Russell R. Wheeler, Federal Judges and the Judicial Branch: Their Independence & Accountability, 46 MERCER L. REv. 835, 839 (1995) ("It is the essence of good judicial process that it is uncontaminated by pressures for decision beyond those presented by the particular facts and the applicable HeinOnline -- 2005 Wis. L. Rev. 116 2005 2005:115 ConstitutionalDecision-Making History, however, tells another story. Time and again, courts, including the Supreme Court, have deferred to questionable, if not outright illegitimate, government actions taken in the name of national security.5 Some observers view the courts' poor performance during national security crises as a reason for judges to stay away from the delicate task of balancing security and civil liberties.6 Far more observers, however, argue that adequate protection of civil liberties requires a more active role for the judiciary.7 Recently, the Supreme Court apparently agreed, at least in principle. In Hamdi v. Rumsfeld,8 the Court affirmed that the Constitution "envisions a role" for judges "when individual liberties are at stake," and rejected the notion that "a state of war is. a blank check for the President when it comes to the rights of the Nation's citizens." 9 The normative argument that courts ought to protect civil liberties in times of crisis is an attractive one. It is one thing, however, for us to say that courts should take a more active role in protecting civil liberties. It is quite another to say that they the will. Judges are, after all, human. They remain subject to the same passions, fears, and prejudices that sweep the rest of the nation. While in the legal paradigm, adherence to the law and its objective criteria is supposed to law."); Tracey E. George, Court Fxing, 43 ARIz. L. REv. 9, 31-32 (2001) ("Legal theory is derived from the idea that judges are neutral and reasoned arbiters who defer to rules to guide their decisions."). 5. See Wells, supra note 3, at 903; Christina E. Wells, Discussing the First Amendment, 101 MICH. L. REV. 1566, 1578-87 (2003) (reviewing ETERNALLY VIGILANT: FREE SPEECH IN THE MODERN ERA (Lee C. Bollinger & Geoffrey R. Stone eds., 2002)). 6. RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY 292-98 (2003); WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME 205-06 (1998); Gross, supra note 3, at 1022-23; Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. REv. 273, 307. 7. See, e.g., ZECHARIAH CHAFEE JR., FREE SPEECH IN ThE UNITED STATES (Athenum 1969) (1941); MICHAEL LINFIELD, FREEDOM UNDER FIRE: U.S. CIVIL LIBERTIES IN TIMES OF WAR (1990); GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME (2004); Aharon Barak, The Supreme Court, 2001 Term-Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REv. 16 (2002); Cole, supra note 3; Thomas I. Emerson, Freedom of Expression in Wartime, 116 U. PA. L. REv. 975 (1968); Joel B. Grossman, The Japanese American Cases and the Vagaries of ConstitutionalAdjudication in Wartime: An Institutional Perspective, 19 U. HAw. L. REv. 649 (1997); Philip B. Heymann, Civil Liberties and Human Rights in the Aftermath of September 11, 25 HARV. J.L. & PUB. POL'Y 441, 456 (2002); Jules Lobel, Emergency Power and the Decline of Liberalism, 98 YALE L.J. 1385, 1409-12 (1989); Eugene V. Rostow, The Japanese American Cases-A Disaster,
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