The Grapes of McGrath: The Supreme Court and the Attorney General’s List of Subversive Organizations in Joint Anti-Fascist Refugee Committee v. McGrath (1951)

ROBERT JUSTIN GOLDSTEIN∗

The so-called Attorney General’s List of Subversive Organizations (AGLOSO) was one of the most central and widely publicized aspects of the post–World War II Red Scare, which has popularly—if inaccurately—become known as “McCarthyism.” Like many other elements of the Red Scare, the AGLOSO in fact predated the emergence of Senator Joseph McCarthy on the national political red-hunting scene. It originated in President Harry Truman’s Executive Order 9835 of March 21, 1947, which required all federal civil-service employees to be screened for “loyalty” and specified that one criterion to be used in determinations that “reasonable grounds exist for belief that the person involved is disloyal” would be a finding of “membership in, affiliation with or sympathetic association” with any organization determined by the Attorney General to be “totalitarian, Fascist, Communist, or subversive” or advocating or approving the forceful denial of constitutional rights to other persons or seeking “to alter the form of Government of the United States by unconstitutional means.”1 Beginning in late 1947, the federal government began publishing AGLOSO lists, which ultimately reached almost 300 organizations, without offering the targeted groups either hearings, specific charges, or advance notice. This led Washington Post editorial writer Alan Barth to term the Attorney General’s AGLOSO mandate “perhaps the most arbitrary and far-reaching power ever exercised by a THE GRAPES OF McGRATH 69

In 1947, President Harry Truman mandated that federal civil-service employees be screened for loyalty, with one consideration their membership in, affiliation with or sympathetic association; with organizations deter- mined by the Attorney General to be Communist, Fascist, totalitarian, or subversive. Pictured are government postal workers in the 1940s. single public official” in American history, effectively allowing that official to “stigmatize” and “in effect, proscribe any organization of which he disapproves.”2 Although the only officially announced purpose of the AGLOSO was to provide guidance in federal civil-service loyalty determinations, it quickly became used by a wide variety of public and private organizations as the basis for discriminating against persons alleged to be affiliated with listed organizations and the groups themselves. Thus, it was utilized by state and local governments, the military, defense contractors, hotels, the Treasury Department (in making determinations regarding tax exemption) and the State Department (in making passport decisions), to cite only a few of many examples.3 FBI Intelligence Division official A. H. Belmont wrote to Assistant FBI Director D. M. Ladd on March 18, 1952 that AGLOSO listings had been “found from experience to have substantially impeded the effectiveness of the [designated] organization.”4 Both scholars and the general press have clearly agreed with this assessment. Various scholars have written that the AGLOSO, which was massively publicized in the media, became what amounted to “an official black list”5 and “usually a kiss of death”6 to listed groups, which came to have in the public mind “authority as the definitive report on subversive organizations,” understood as a “proscription of the treasonable activity of the listed organizations”7 and the “litmus test for distinguishing between loyalty and disloyal organizations and individuals.”8 Thus, an April 28, 1949 New York Times story about the listing of additional AGLOSO organizations was headlined “Government Proscribes 36 More Groups as Subversive, 23 of Them ‘Communist,’” while a number of files related to the AGLOSO held in the Eisenhower presidential library are marked “blacklisted organizations.”9 In an article entitled “What the Attorney General’s List Means,” 70 JOURNAL OF SUPREME COURT HISTORY the November, 1956 Elks Magazine began by accurately noting that “there are few Americans who have not heard of ‘the Attorney General’s subversive list’” and concluded by summarizing the AGLOSO’s clear message: “There is no excuse for any American citizen becoming affiliated with a group on the Attorney General’s list today.”

In April 1951, in a decision featured in conservative American Federation of Labor front-page headlines across the country, the President William Green. A 1944 NCASF U.S. Supreme Court struck the first major blow dinner held to celebrate the twenty-sixth against the AGLOSO, in a complex and am- anniversary of the Soviet Army received biguous decision, Joint Anti-Fascist Refugee congratulatory messages from five American Committee v. [Atorney General Howard] generals, including Dwight Eisenhower and McGrath,10 which overruled six lower court Douglas MacArthur; its membership included decisions and required that three designated or- at least three Congressmen and Secretary of ganizations be allowed to contest their listings. the Interior Harold Ickes. During the Cold The High Court ruling concerned the Joint War, the NCASF became widely viewed as Anti-Refugee Committee (JAFRC), the Na- an outlet for Soviet propaganda and its di- tional Committee on American-Soviet Friend- rector was found in contempt of Congress in ship (NCASF), and the International Workers 1946 for failing to provide HUAC with subpoe- Order (IWO), three clearly left-wing organiza- naed records. The IWO, the largest organiza- tions, which were among the largest and most tion ever AGLOSO-listed while still function- prominent AGLOSO-designated groups. ing, was a fraternal insurance benefit society The JAFRC had been licensed in 1942 chartered by the state of New York that, al- to provide medical aid for Spanish Civil War though clearly under very substantial Commu- loyalist refugees in France by President Roo- nist Party (CP) influence, enrolled over one sevelt’s War Relief Control Board and, like million Americans (fewer than five percent of the other organizations, had been granted them CP members) between 1939 and 1950. It tax-exempt status by the Treasury Depart- was praised during World War II by a variety ment which had been withdrawn following its of public officials, including Ickes and Senator AGLOSO designation. The JAFRC included Robert Wagner (D-NY), was awarded a Trea- Communists in its leadership, but, like the sury Department certificate of merit for selling other two organizations, was never accused almost $300,000 in war bonds, and had repeat- of illegal activities. However, early on it at- edly received high evaluations in regular re- tracted the attention of the House of Represen- views by New Yorkstate and private insurance tatives Committee on Un-American Activities raters.11 (HUAC), resulting in 1946 contempt-of-court Each of the three organizations had origi- sentences against its entire leadership for nally filed separate suits against the Attorney failing to supply HUAC with subpoenaed General and other federal officials in federal records. The NCASF was organized to pro- district court in Washington, D.C. in 1948 and mote Soviet-American friendship at a 1942 1949, maintaining that their listing had un- mass meeting which received constitutionally denied them free-speech and greetings from President Roosevelt and Vice due-process rights by damaging their ability President Henry Wallace, was sponsored by to conduct legitimate activities, by impairing three Cabinet members, and was attended their reputations and fostering a wide range by 20,000 people, who heard speeches from of reprisals against them, and by depriving New York Governor Herbert Lehman, New them of any opportunity to contest their des- York City Mayor Fiorello Laguardia, and ignations. For example, with regard to First THE GRAPES OF McGRATH 71

The Joint Anti-Fascist Refugee Commission had its tax-exempt status withdrawn once it was placed on the Attorney General’s List of Subversive Orga- nizations (AGLOSO). It had been licensed in 1942 to provide medical aid for Span- ish Civil War loyalist refugees in France by President Roosevelt’s War Relief Control Board. Pictured here, a Spanish Red Cross poster asks for sup- port for imprisoned antifascists and their families in 1936.

Amendment rights, the NCASF maintained eral tax exemption, costing “large sums of that it and its affiliates had been “seriously money which they would otherwise have re- frustrated and unduly burdened” in exercising ceived as contributions;” and lost the ability its First Amendment rights, as it had “lost nu- to “get members and support from federal merous members, officers and sponsors; lost employees,” who feared that their “employ- public support; lost contributions; lost atten- ment would be jeopardized.” Beyond the al- dance at meetings; lost circulation of their pub- leged damage to their First Amendment rights, lications; lost acceptance by colleges, schools the three organizations maintained that their and organizations of their exhibits and other Fifth Amendment due-process rights had been material; have been denied meeting places; violated because the government’s AGLOSO have been denied radio time;” lost their Fed- designations were arbitrary, especially by not 72 JOURNAL OF SUPREME COURT HISTORY granting them hearings or other procedures al- on executive powers not subject to judicial re- lowing contestation of their listings. Thus, the view and that, in any case, the AGLOSO in- IWO maintained that its listing was “without flicted no concrete damage on the complain- warrant in law” and “without the slightest basis ing organizations that required a legal remedy. in truth or in fact and was made without no- In the JAFRC appeal, for example, the De- tice or opportunity to be heard, without finding partment maintained that the AGLOSO des- of fact or conclusions of law and without any ignation imposed “no restrictions whatever” prior or accompanying statement of explana- upon the JAFRC, which remained free to con- tion.” Both the NCASF and the IWO explic- duct its business, raise money, voice its views itly denied that their activities provided any and publish its beliefs, as the listing issued basis for their AGLOSO designations, while “no directive to other federal, state, or mu- the JAFRC did so implicitly by describing its nicipal officials” and did not “command the activities as solely dedicated to aiding Spanish appellant to do or to refrain from doing any- refugees.12 thing.” Moreover, the Department maintained, The Justice Department filed two- the Attorney General was constitutionally au- sentence rejoinders to each of the three law- thorized to “designate appellant as a commu- suits, simply maintaining that the complaints nist organization” as an agent of the President failed to “state a claim” against the govern- in carrying out his responsibilities to regu- ment “upon which relief can be granted.” In late admission to the civil service, and “cer- three separate federal district court rulings in tain executive powers” were “not subject” to 1948 and 1949 judges upheld the government. court review, “clearly” including the “right to The JAFRC suit was dismissed without ex- speak forth freely to the nation and inform it planation in June 1948. In a February 1949 of groups deemed to be operating against the ruling in the NCASF case, Judge Jennings best interests of our constitutional government Bailey declared that there could be no legal itself.” The Department added that it was “un- remedy for the “indirect effect” of AGLOSO tenable” to assert that the Attorney General designations upon organizations, which did could “under any circumstances be restrained” not “constitute legal damage” or in any way from informing the government and the na- subject them “to any civil or criminal liabil- tion about organizations that posed a “threat to ity” and which were related to a governmen- our democratic processes,” and that although tal program whose sole purpose was to le- such power “might be subject to abuse,” the gitimately facilitate the administration of fed- only remedy was “the elective process,” or eral loyalty screenings. In April 1949, Judge impeachment of the President. In each case, Matthew McGuire similarly ruled against the the appeals court endorsed the government’s IWO, holding that it lacked standing to sue be- position. In the JAFRC case, for example, a cause it had shown no “unlawful invasion of three-judge appeals panel declared by a 2–1 some legally protected right,” as the AGLOSO vote on August 11, 1949 that the organiza- listing was not a “controlling” government ac- tion’s complaint failed to “present a justiciable tion, but only the equivalent of “advice” to the controversy” because the AGLOSO listing and President which, by implication, governmen- Truman’s Loyalty Order “command[ed] noth- tal agencies and others could utilize or not at ing of the Committee,” denied it “no author- their discretion.13 ity, privilege, immunity or license,” subjected Things went little differently in the federal it to “no liability, civil or criminal,” and “de- court of appeals for the District of Columbia, nied no one” any “property rights” or “free- although here the Justice Department gave dom of speech and assembly.” The decision a slightly longer response, which included added that, in promulgating the AGLOSO, the sweeping claims that the AGLOSO was based Attorney General had merely complied with THE GRAPES OF McGRATH 73 presidential directives in providing “informa- courts had erred in holding that the govern- tion and advice” in pursuit of the government’s ment bore no responsibility for injuries result- legitimate interests in protecting the civil ser- ing from their AGLOSO designations. Thus, vice from “disloyal and subversive elements,” the NCASF urged the Court to intervene be- that the Attorney General had only undertaken cause the issues raised were of “great pub- “that which the President could have done for lic importance,” since its case presented “an- himself,” in which case “his action would have other application of the growing tendency of been within the realm of his executive power, the making of administrative decisions,” all not subject to judicial review,” and thus the “invariably justified by a claim of the needs AGLOSO’s “essential character” was that of of ‘internal security,’” which “seriously im- “acts of the President himself,” which could pair individual liberties” without “procedural not be “challenged legally.” The Court further safeguards” and “on the basis of secret ev- dismissed all challenges to procedural aspects idence locked in the bosom of the adminis- of the AGLOSO’s promulgation and publica- trator and [therefore] never susceptible of re- tion, holding, for example, that lack of hear- buttal by those affected.” It maintained that ings implied no due-process lapses because its injuries were caused by governmental offi- the AGLOSO was a “necessary” step in im- cials “stimulating others to take action,” and plementing the loyalty program, thus afford- that the Constitution nullified “sophisticated ing “no ground for judicial review” if, as one of as well as simple-minded encroachments on its “unavoidable consequences,” it happened to the freedoms of speech and assembly” and “affect adversely” listed organizations “against that therefore the contention that the Constitu- whom it is not directed.” In a vigorous dis- tion distinguished between “indirect” and “di- sent that was twice the length of the majority rect” abridgement of guaranteed rights lacked holding, Judge H. W.Edgerton maintained that any legal foundation. Moreover, it maintained, the AGLOSO designation of the JAFRC was the Attorney General’s “unfettered discretion” “contrary to fact, unauthorized and unconstitu- with regard to making AGLOSO designations tional” for numerous reasons. Thus, he argued meant that he could “list any organization that “helping former Spanish Republicans is which incurs his displeasure,” all while claim- not evidence of disloyalty to the government,” ing the right to “resist any inquiry into his ille- that the designation of the JAFRC lacked “ba- gal actions.” The NCASF brief concluded by sic standards of fairness” by failing to grant arguing that the Constitution gave “no power notice or hearing, and that the designation was to any government official to list organizations “defamatory” and had unconstitutionally im- as subversive or disloyal” and, citing the 1943 posed a “substantial clog” on the group’s First Supreme Court case of West Virginia Board Amendment rights without any showing of of Education v. Barnette (holding that govern- “clear and present danger.” The federal appeals ment had no right to demand orthodoxy of court simply cited its JAFRC ruling in reject- the citizenry’s political beliefs, such as com- ing the NCASF appeal in October 1949, and pelling school children to pledge allegiance it relied heavily on it in similarly rebuffing the to the flag), declared that the AGLOSO effec- IWO in March 1950.14 tively allowed the Attorney General “to make Following the appeals court rebuffs, the himself a judge of political orthodox and loy- three organizations appealed to the Supreme alty” and to “inform the public that certain Court, reiterating their previous arguments, ideas are officially discouraged and prohib- adding that their cases were highly significant ited,” thus violating “the most revered tradi- given the general context of increasing pres- tions of our Constitution.”15 sures on civil liberties arising in the Cold War In its seventy-eight-page petition for cer- atmosphere, and maintaining that the lower tiorari, the JAFRC maintained that it had 74 JOURNAL OF SUPREME COURT HISTORY suffered concrete adverse impacts upon its tus,” imposed “no regulation or directive lim- property and constitutional rights. It also ar- iting the operation or conduct of petitioner’s af- gued that because the “executive power is no fairs,” included “no directive to other federal, more immune from judicial review” than any state, or municipal officers which in any way other form of governmental action, it had le- subjects petitioner to the contingency of fu- gal standing and its grievances did present a ture administrative action,” and subjected “nei- “justiciable controversy.” The JAFRC termed ther petitioner nor its members to any crim- it “immaterial” that the injury it had suffered inal or civil penalties, either immediate or was “occasioned by publicity and [that] re- postponed.” Moreover, the government main- spondents’ conduct did not assume the more tained, any damage to the JAFRC’s “advanta- formal, orthodox, and traditional forms of gov- geous relationship with others” alleged to stem ernmental action,” because the “prestige and from its AGLOSO designation “largely” arose the power” behind a “label attached and dis- “from the force of public opinion and not from seminated by an official agency of the govern- the direct action of respondents.” And in any ment” was especially damaging. The JAFRC case, it was legally “well settled that public urged that “there must be some limits to the officials are absolutely privileged to publish use of prestige and power of high public of- even false and defamatory matter in the exer- fice to stigmatize individuals and organiza- cise of official duties” and it was “plain that tions,” and that a contrary holding could even this alleged defamation was an official com- allow the AGLOSO to list “religions or races munication as to matters within the authority as well as organizations” and to permit “the of respondents.”16 process of judicial review, which in this coun- The Supreme Court separately granted try is the cornerstone of constitutional govern- certiorari in each of the three cases during ment,” to be “circumvented upon every occa- 1950, leading to another series of exchanges sion when officials conceive some ingenious of legal briefs in which the three organiza- or novel mode of wielding power.” The brief tions and the Justice Department reiterated and also rejected claims that the AGLOSO only elaborated upon their prior arguments, often concerned civil-service employees and did not in far sharper terms that reflected the grow- directly threaten First Amendment rights, on ing Cold War tensions associated with the out- the ground that “the purpose of the publica- break of the Korean War in June 1950 and Sen- tion of the list” was to “affect the freedom of ator Joseph McCarthy’s appearance on the anti- thought, expression, and association of every Communist scene in February 1950. Thus, in organization labeled or capable of being la- its September 1950 brief, the NCASF argued beled as ‘subversive’ by the Attorney General that the AGLOSO and the Appeals Court rul- and to every person associated with such an ing that sustained it were “incompatible with a organization.” government of laws and freedom,” as “without The Justice Department responded to the procedural safeguards, on the basis of secret briefs with short responses that urged denial evidence locked in the bosom of an adminis- of certiorari by reiterating its stance that no trative officer and never susceptible of rebut- grounds existed to consider the lawsuit because tal by those affected, and without fulfilling any “no justiciable controversy” was involved and legitimate governmental purpose” the govern- the organizations had no legal standing be- ment had “made an auto-da-fe for the ideas cause they had suffered no injury at the hands espoused” by the NCASF and the Appeals of the government. In its response to the Court had only “heaped fuel on the flames.” JAFRC brief, for example, the Department Responding to the lower court’s ruling that it maintained that the AGLOSO “in no way” had no standing to sue because it had suffered changed the JAFRC’s “existing or legal sta- no direct injury from the AGLOSO, the brief THE GRAPES OF McGRATH 75 characterized such reasoning as effectively persons who are currently causing the demor- holding that First Amendment freedoms re- alization of the federal service and the blasting quired no judicial protection from the govern- of individual reputations and careers.”17 ment so long as they were abridged by “so- In its October 1950 brief, the IWO main- phisticated” and “subtle” indirect methods and tained that “in light of the realities of today,” by “insidious” pressures such as those “here it was “the sheerest sophistry for the Govern- employed,” such as an official “blacklist” and ment” to maintain that the IWO lacked stand- “index,” rather than “by an outright interdic- ing because, for example, AGLOSO designa- tion.” Therefore, the NCASF argued, the ap- tion did not compel anyone to resign from peals court, reflecting a “callous attitude to- the IWO or to cancel his insurance, as the wards the right of political dissent” and mixing First Amendment included in its protection of “bad logic with misread precedents,” had com- American citizens against government actions mitted the “fundamental constitutional error” those that limited their freedoms by “not only of failing to “discharge its primary obligation direct restraints but indirect ones as well.” In its to give vitality to the Bill of Rights” and trans- September 1950 brief, the JAFRC also rejected late it into “living law.” Thus, upholding its rul- the claim that the AGLOSO had inflicted no ing would “imply that the courts have virtually “direct” injury upon it, maintaining that it put withdrawn from the function of protecting civil “civil service employees and applicants on no- liberties.” tice that ‘association’ with the JAFRC will re- According to the NCASF brief, the im- sult in ineligibility,” and that in the “political pact of an AGLOSO listing upon an organi- arena,” the “intended and actual effect” of be- zation could be compared to that of a govern- ing listed was to weaken or destroy “any ef- ment “requirement that Jews wear arm-bands,” ficacy among the electorate that such organi- effectively embodying in both cases an offi- zations might possess.” The brief concluded cial determination that the targeted group or that even the “most elementary notions of fair individual “is obnoxious to the government” play dictates that before a group of Americans and an intent to stimulate “the public to shun may be officially stigmatized as ‘disloyal’ or or harm it,” thus presenting as “blatant an in- ‘subversive’ they should be heard in their own stance as ever there was in which governmen- defense.”18 tal authority seeks to censor unpopular ideas Previous government briefs defending the by indirect and unhanded efforts.” Especially AGLOSO had generally been short and almost given the real-world impact of the AGLOSO casual in tone. However, the Supreme Court’s upon groups, the brief maintained that the decision to hear the cases apparently came as a AGLOSO effectively constituted an official considerable shock to the Justice Department, government “regulation” and was thus fatally which responded to the JAFRC brief with a flawed by its “total disregard of due process” fifty-one-page reply, which it incorporated in by giving the Attorney General “unfettered briefer responses to the NCASF and the IWO. discretion,” which allowed him to list “any or- The Department essentially declared that the ganization which incurs his displeasure,” re- AGLOSO was a “political” act promulgated gardless of its aims, activities, or loyalty, and by the President in pursuit of his constitu- by fostering the “irrational and dangerous” tional powers to protect the nation and was practice of threatening federal employees’ jobs therefore completely beyond judicial review for their organizational affiliations rather than and subject to correction only by elections their individual performances. Clearly refer- or impeachment. The reply also considerably ring to Senator McCarthy, the brief termed the fleshed out the Department’s position that the loyalty program’s use of associations to judge JAFRC lacked legal standing to challenge the employees the “stock-in-trade of irresponsible AGLOSO and that “no justiciable controversy” 76 JOURNAL OF SUPREME COURT HISTORY existed because the “list” allegedly failed to ment,” which banned interference with free directly impose any concrete penalties on the speech but did not state that “Congress or the organization, as it contained no “directive” to Executive may not inform the public” or seek “federal, state, or municipal officials which to “protect persons against unfavorable pub- in any way subjects petitioner to the contin- lic opinion, even though such opinion may be gency of future administrative action” or any stimulated by disclosures made by or to an in- “criminal or civil penalties either immediate or vestigating body.” Essentially, the Department postponed,” had no “legally operative effect on maintained, the JAFRC sought to restrain the First Amendment rights,” and did not even re- Attorney General, who had “been directed by quire federal employees to “disassociate them- the President to determine and publish” the selves from petitioner’s activities” or “bar other AGLOSO (in fact Truman’s order made no federal employees from becoming members,” reference to publication), from complying, as as it simply indicated that JAFRC affiliations was his “clear duty under the Constitution,” “may or may not be helpful” in making fed- but “determinations made by the heads of de- eral loyalty determinations “based on all the partment in the fulfillment of that duty are es- evidence.” In any case, according to the De- sentially political, not judicial, in nature” and partment, “well settled” law established that were “decisions of a kind for which the ju- “utterances” made by public officials “are ab- diciary neither has the responsibility nor the solutely privileged” against legal assaults “ir- facilities to review.”19 respective even of a claim of malicious moti- The Supreme Court heard consolidated vation,” and since here the Attorney General oral argument in the three challenges to the was acting “as the agent and alter ego of the AGLOSO’s constitutionality on October 11, President in the exercise of his primary exec- 1950, with both and utive power,” his act was a “political” one that , quite unusually, report- was “beyond the control of any other branch of ing the developments in lengthy news sto- the Government except in the mode prescribed ries the following day. Only eight Justices by the Constitution through impeachment” or appeared at the Bench to hear the cases, as via “the elective process.” This was especially Tom Clark, the former Attorney General who so at present, the brief argued, since Cold had overseen the AGLOSO, abstained due to War “tension and danger demands the utmost conflict-of-interest concerns. Former assistant vigor and vigilance on the part of the Presi- attorney general O. John Rogge, represent- dent to take action which he deems required ing the JAFRC, denounced the “list” as a in the interest of national safety” and here “star chamber” technique that made the At- he sought only to exercise his “constitutional torney General’s “whims final and correct,” and statutory authority” to regulate the “em- while NCASF attorney David Rein termed ployment and discharge” of federal employ- the AGLOSO a “kind of censorship,” cur- ees, which were “internal administrative mat- rently “in its heyday as a technique for sup- ters concerning which the United States is free pressing political dissent,” which proclaimed to act as it pleases without judicial compulsion that “certain persons, organizations, literature, or restraint at the insistence of an outsider such or doctrine[s] are heretical, disloyal, subver- as petitioner.” The Department maintained that sive, or otherwise officially obnoxious.” Af- it was a “complete distortion of the intent and ter IWO attorney Allen H. Rosenberg declared purpose” of the AGLOSO to “conceive of it that his organization was the “only fraternal as a ‘blacklist’ calculated to injure petitioner benefit” society in the country that banned by harassment and vilification,” and that any segregation and welcomed “the Negro peo- “indirect consequences of public disclosure” ple into membership,” Justice Robert H. Jack- were beyond “the purview of the First Amend- son inquired who might be excluded from THE GRAPES OF McGRATH 77 the organization; when Rosenberg responded, of the cases once the Court had decided to con- “perhaps professional strikebreakers,” Jack- sider them, reflect significant division among son dryly retorted, “They might not be very the clerks and between the clerks and their Jus- good insurance risks anyway.” tices and, above all, an acute sensitivity to the Solicitor General Philip Perlman main- political ramifications and importance of the tained for the government that careful issues involved.20 investigation had preceded the AGLOSO’s In two instances, Justices rejected advice promulgation, and he denied that any “whole- from their clerks that the Court use the recent sale blacklisting” of organizations had fol- passage of the 1950 McCarran Act, which pro- lowed it or that the plaintiff organizations had vided for hearings before the newly created suffered injury real enough to provide them le- Subversive Activities Control Board (SACB) gal standing to challenge it. Perlman rejected and the right to seek subsequent judicial re- Rogge’s contention that AGLOSO’s real pur- view before the government listed organiza- pose was to “regiment the American people,” tions (outside of specific consideration with instead maintaining that its sole purpose was regard to government employment) as com- to “protect and safeguard our form of gov- munistic, as an excuse for either indefinitely ernment” and that it served only as a “guide” delaying any ruling on the cases or for back- and but “one element” in making federal loy- ing the government (despite the clerks’ con- alty determinations. When Justice Hugo Black clusions that the AGLOSO organizations had asked Perlman if even the Catholic church valid cases). Thus, in an undated eight-page could be listed, the Solicitor General said it memo focused on the NCASF case apparently could. Moreover, under questioning Perlman written immediately before the Court heard conceded that since listed organizations had oral argument on October 11, 1950, one of Jus- no right to a hearing or appeal, their only rem- tice Harold Burton’s clerks (initials MS) con- edy was “none” other than to have “the people cluded that there was “no doubt” the organi- elect another President who will appoint an- zation had raised a “justifiable” issue, since other Attorney General who will take it off.” its AGLOSO listing was “just about to wreck” Justice said the “crux” of the its mission, the Attorney General’s procedure cases was that listed groups were denied a hear- “did not meet the procedural requirements” ing, to which Perlman responded that hearings of Truman’s order calling for “appropriate in- would “ruin the whole loyalty program,” since vestigation and determination,” and there was it would take “years and years” to settle the “no reason” why “relief cannot or should not status of even a single group. be given.” However, he recommended that the The AGLOSO cases were clearly viewed Court should seek to avoid the “unpleasant by the Supreme Court judges and their clerks chore” of rebuking the executive by seeking as simultaneously extremely divisive, impor- governmental assurance at oral argument that, tant, and politically explosive from the very due to the McCarran Act, it would either “re- beginning, according to both the public record scind the old [AGLOSO] list” and thus moot of the Court and the files of Supreme Court the existing cases or else “promise” to utilize Justices that became available after their re- the Act against the plaintiffs, in which case tirement and/or deaths. Two Justices, Frank- “these proceedings should be stayed pending” furter and Jackson, became so frustrated by the the completion of SACB hearings and the pos- Court’s handling of the cases that, as discussed sible judicial review guaranteed under it. The below, they lashed out at their colleagues in clerk concluded that if the SACB found the extraordinarily harsh terms. Memos to the Jus- JAFRC “subversive and if that finding is up- tices from their clerks advising them concern- held by the courts, the merger of the damage ing whether to grant “cert,” and on the merits from the two lists would make this case moot,” 78 JOURNAL OF SUPREME COURT HISTORY while if the JAFRC was found “to be lily white, tradition of the medieval heresy court—and and if the Attorney General persists in leaving inconsonant utterly with whole philosophy of the old list stand,” then the JAFRC “would still Anglo-American law.” He concluded that be- have a cause of action.” fore allowing an official to publish “his black A fundamentally similar thirty-three-page list of heretical organizations, I should require October 9, 1950 memo from one of Frank- that they at least be given an opportunity to furter’s clerks also evoked the McCarran Act hear the charges and meet them before their to urge the Court to avoid rejecting the gov- reputation is ruined, their property made val- ernment’s arguments (advice that Frankfurter ueless, and their existence jeopardized.” Reed ultimately rejected, just as Burton rejected voted not to grant certiorari and, later, against the above-discussed recommendation of his the organizations’ claims. clerk). Frankfurter’s clerk declared that the In other instances, the Justices accepted complaining organizations had “fulfilled the impassioned recommendations from their requirements for a justiciable controversy” and clerks. Justice William Douglas was advised had suffered “very real” harm, which had “sub- by a clerk (initials WMC), when the Court stantially if indeterminately” reduced the “vol- was considering hearing the JAFRC’s appeal ume of constitutionally-protected controver- in early 1950, that “it is not necessary to la- sial ideas ‘competing in the market-place’” bor the point that this is one of the most im- and thus raised a “public as well as private in- portant certs of the year,” especially because terest in allowing the suit.” However, he con- “these days, there are few more serious charges cluded that the Court should “withhold relief that an organization or person is Communist” on the ground that insufficient justification has and that it appeared that the Attorney Gen- been shown for interference with this exec- eral had abused his authority by publishing utive function at this particular time and in the AGLOSO and ignoring “rudimentary fair- these particular instances,” above all because ness” by denying the JAFRC “an opportunity “when considerations arising” from the Mc- to be heard before listing it as subversive or Carran Act “are placed in the scales, it seems communist.” One of Justice Robert Jackson to me tolerably clear that the Court should not clerk’s (initials AYC) similarly advised him to now intervene.” grant cert in the JAFRC case, terming the ques- Justice Reed also ignored the advice of tions raised therein “of great public importance one of his clerks (initials BAM), although in and significance.” According to the clerk, the the reverse direction. While the Court was con- existing AGLOSO procedure amounted to a sidering whether to grant “cert” in the JAFRC “method of prescribing orthodoxy in thought,” case, Reed’s clerk wrote a memo arguing that and what made the Attorney General’s powers the JAFRC had clearly “lost property” interests “so frightening” was the “complete lack of any due to its AGLOSO listing and that the loyalty of the usual trappings of due process.” Clearly order had given the Attorney General an “awful referring to Jackson’s service as a prosecutor power,” whose procedures were “squarely at of Nazi war criminals at Nuremberg, during odds with the most rudimentary notions of due which hearings were held before organizations process and fair play.” Although, he argued, the were labeled “Nazi,” the clerk added, “I would JAFRC was a “genuinely Communist and ‘sub- find it embarrassing, to say the least, to try to versive’ outfit” and “there would be no doubt explain why the German organizations were but that after [an administrative or judicial] given a complete trial” while “American orga- hearing, its designation would remain as ‘sub- nizations are not entitled to one here.” versive,’” the “arbitrary power” granted the At- The Court’s records indicate extraordi- torney General “to brand with this mark of the nary, intense, and prolonged divisions once the pariah is so dangerous” that it was in the “direct Justices began to ponder the cases following THE GRAPES OF McGRATH 79 the October 11, 1950 oral argument. While voted against granting relief to the three or- sometimes contradictory, these records sug- ganizations: Both Vinson’s and Reed’s records gest that, although the Justices discussed the show the vote at 4–4 (with, in Reed’s records, a cases on October 14, quite unusually they did vote for granting relief by Jackson erased and not vote until a later meeting on either October replaced by an opposite vote), while Burton’s 16 or October 21, and that, after first deadlock- tally shows a vote by Jackson against relief ing 4–4 (effectively upholding the lower court erased and replaced by a positive vote, with the rulings by failing to overturn them), ultimately final vote seemingly dated October 16, 1950 voted 5–3 against the government when Jus- (although Frankfurter’s records place the vote tice Jackson changed his position. Notes taken on October 21). by Douglas and Justice Stanley Reed at the On October 23, Burton was assigned October 14 conference indicate that the three to write an opinion for the Court, which dissenting judges—Reed, Chief Justice Fred rejected the government’s position on an Vinson, and Justice Sherman Minton—agreed extremely narrow basis by giving the com- that the three complaining AGLOSO organiza- plaining organizations the right to further legal tions either had “no standing” to sue (Vinson’s proceedings to challenge their AGLOSO list- view) or, if they did, had “nothing to sue for” ings, while not accepting any general attack on (in Minton’s words) because (in Reed’s words) the fundamental constitutionality of the con- “none” of their constitutional rights had been cept of the AGLOSO or the loyalty program. “violated” and thus there was no “actual con- Burton submitted a draft opinion on November troversy.” 20, which Douglas joined on February 6. Dou- The opposite position was articulated by glas also wrote a separate concurrence, which Douglas, Burton (who maintained that the At- he circulated on April 11. Separate concur- torney General “cannot without some hear- ring opinions were circulated by Frankfurter ing call them subversive”) and Black (who on December 21, Jackson on January 30, and declared that “these organizations have been Black on February 9. Between Black’s opinion, destroyed” and that no governmental officials which created a definitive majority for over- could exercise the powers involved in the case turning the lower court rulings and rebuffing “without hearings, evidence, and the right to be the government, and Reed’s dissenting opin- heard,” since such a proceeding “runs counter ion of April 6, which was joined by Vinson to due process and our notion of fairness”). and Minton, Frankfurter and Jackson both ex- Jackson’s comments were highly ambiguous, ploded in rage over the Court’s proceedings. suggesting that an AGLOSO listing amounted Frankfurter’s anger centered on what he to little more than “abuse piled on to the orga- viewed as the dissenters’ unconscionable delay nization” and “one of the risks” that organiza- in circulating their views for many weeks after tions had to face. His primary concern was that the five majority Justices had submitted their individuals who faced loyalty dismissal pro- opinions (perhaps fearing that Jackson might ceedings due to AGLOSO ties have the right switch again or that some other development to “challenge the rating of the organization” would affect the vote), which he suggested vi- and show it was not, in fact, “subversive,” and olated the norms both of the Court and of “de- therefore he intended to “wait on these three cency.” In a private letter to Reed on March [organizational] cases until the Court votes 19, 1951, Frankfurter fumed that “five months on [the case of Dorothy] Bailey,” a loyalty have elapsed since a majority of the Court dismissal proceeding about which the Court voted to reverse these cases and nearly six also heard oral argument on October 11, 1950. weeks have elapsed since [Black’s] last concur- The tally sheets maintained by several of the ring opinion for the judgment of reversal has Justices strongly suggest that Jackson at first been circulated,” while the dissenters “could 80 JOURNAL OF SUPREME COURT HISTORY not have been in doubt about your position him to originally side with the dissenters, with since October 21st” (possibly the date of the his strong commitment to due process, which final 5–3 vote in the case). Frankfurter stated inclined him in the other direction. What out- that the dissenters’ action in “holding up the raged him was that he viewed the Court’s judgment in the loyalty cases long after a ma- impending AGLOSO decision, which man- jority has been ready for their disposition” had dated additional due-process protections for “no equal since I have been on the court” and the complaining organizations, as totally con- “with considerable knowledge of the past do- tradicting its pending decision to effectively ings of the Court, I venture to believe noth- uphold Bailey’s federal loyalty firing without ing like it has happened for at least 50 years.” providing the right to learn of or cross-examine Noting that Reed had stated “in your engag- her accusers. While Jackson focused on the lat- ing way” that he was working on another case, ter issue in his ultimately published, deeply an- which from the “the point of view of any honest gry concurring opinion, his anger also surfaced workmanship, could not be possibly be ready in his first draft concurrence, which was cir- for a considerable stretch,” Frankfurter thun- culated in late January 1951, and, above all, in dered that “one of the most unquestioned un- an amazingly bitter, uncirculated draft concur- written laws of the Court is that a man should rence that he placed in his files in mid-April. put aside all to work on a dissent in a case that Jackson’s January draft bore only pass- is ready to go down,” a general “obligation,” ing resemblance to his final published concur- which here carried “special force” because the rence; in it he essentially attacked the Court case involved “interests of great importance, for lacking clarity in its holding and, espe- both to the government and citizens.” This was cially, for allegedly providing AGLOSO orga- especially so, Frankfurter argued, because the nizations more protections than are granted to majority was calling for “readjustments by the individuals such as Bailey. Thus, Jackson ar- government” that “ought not to be delayed a gued in his draft that “due process requires needless moment” and the “consequences to standards for administrative action,” but that which the procedure found unauthorized is day the loyalty program provided only “undefined to day giving rise are more widely radiating and indefinable generalities” in its use of terms than I think is fully realized,” so that “in all de- such as “subversiveness, totalitarianism, fas- cency” the Court’s ruling should not “be held cism, or communism” and, indeed, of “loy- up any longer.” Although Reed submitted a alty” itself. He termed the AGLOSO listings draft dissent on April 6, he circulated revised “administrative finding of a fact” made “with- versions on April 12, 13 and 21, leading Frank- out notice to anybody, opportunity for hearing, furter to explode again in an April 27 memo- and standards,” which could be “made without randum to all of the Justices, in which he urged anything that a court would recognize as evi- that “these cases come down without further dence, and so far as the record available to this ado,” as “the lines have been drawn for more court shows, it was so made.” The draft noted than six months, and the demands of public in a footnote that at Nuremberg “every accused administration call for adjudication.” organization had opportunity to offer evidence While Frankfurter was fuming at his dis- in its defense” and “was confronted with and senting colleagues, Jackson appears to have had a chance to cross-examine all prosecution remained deeply ambivalent and at times in- witnesses,” and declared that “lack of notice tensely angry about the Court’s handling of and lack of right to be heard I think preclude the AGLOSO cases. His ambivalence appar- acceptance of the Attorney General’s designa- ently largely derived from the collision of his tion as final.” intense detestation of Communism and deep Jackson’s anger completely boiled over disdain for Douglas, which may have inclined in the bitter, never-circulated April 12 draft THE GRAPES OF McGRATH 81

“addendum” to his concurrence, by then sub- failed to give the plaintiffs anything even ap- stantially revised from his January draft, which proaching a complete victory. Of the eight par- he explained as an attempt “expressly to dis- ticipating Justices, six of them wrote sepa- sociate myself” from Justice Douglas’s April rate, often-heated, opinions that totaled 40,000 11 draft concurrence. Jackson’s “addendum” words, or seventy pages in print. As they an- essentially accused the Court of having been nounced the ruling by reading long excerpts “soft on communism” in its recent rulings, from their written opinions, Jackson com- thereby blocking measures “which if taken mented acidly that hearing them was “likely in time might well have prevented much of to make one delirious,” while Clark, who had the difficulty [in the loyalty area] that has not participated in the case, sat by quietly.21 ensued.” Jackson thundered that attempts by Five Justices—Burton, in a controlling the Roosevelt administration to take “some of opinion joined only by Douglas, with sepa- the ‘strong measures’ against Communism to rate concurring opinions by Douglas, Jack- which the [Douglas] opinion pays lips service” son, Frankfurter, and Black—agreed only that, had been “consistently defeated by this Court” based on the uncontested factual record before with Douglas’s endorsement, with the result them, since the government had not contested that “virtual assurance” had been given to any of the plaintiffs’ factual assertions con- “government employees and others that Com- cerning their nature and post-AGLOSO dam- munist organizations were quite proper for age to their ability to function, the complaining them to join or affiliate with.” Instead of at- organizations had standing to sue, that the dis- tributing the government’s AGLOSO errors to pute was justiciable, and that the challenged a “good faith mistake in an unsettled and de- AGLOSO determinations, in the absence of batable field,” Jackson declared that the Court any process allowing contestation of disputed majority was joining the “Communist cam- listings, were so “arbitrary” that their cases paign to smear our own government by ac- should be returned to a federal district court cusing [AGLOSO] of being ‘totalitarian’ in for “determination” as to whether the organiza- trend, of borrowing ‘totalitarian’ techniques, tions “are in fact Communistic or whether the of starting down a ‘totalitarian path’ and of tak- Attorney General possesses information from ing a ‘leaf from totalitarian jurisprudence.’” In which he could reasonably find them to be so.” his peroration, Jackson lamented that the gov- The Court specifically ordered the cases re- ernment was now finding itself “denounced manded to district court “with instructions to as ‘totalitarians’—by one [i.e. Douglas] who deny the respondents’ [government’s] motion never has been able to see totalitarianism in any that the complaint can be dismissed for fail- Communist case before this Court ... [T]he ure to state a claim upon which relief can be gratuitous assault upon our own Government granted.” from our highest Court ought to be repudiated In his controlling opinion, Burton held in the same source if we let truth instead of that, in “listing” the three organizations the amiable cowardice be our guide.” government had done nothing that “purports to On April 30, 1951, the Court made adjudicate the truth of [their] allegations that headlines across the country when it finally they are not in fact Communistic.” Because announced its ruling in Joint Anti-Fascist the Justice Department had failed to contest Refugee Committee v. McGrath. In what a their denials and had only moved to dismiss United Press dispatch termed a “bombshell” their suits as lacking standing and justiciabil- decision, the Court clearly, as the Associated ity, Burton held that, under legal precedent, Press lead summarized, “lashed out at the gov- the government had “therefore admitted” the ernment for branding organizations as Com- “facts alleged in the complaint,” which must munist without a hearing,” yet simultaneously be “taken as true,” and the Court therefore 82 JOURNAL OF SUPREME COURT HISTORY

Harold H. Burton (right) was appointed to the Court in 1945 by President Truman (left), the instigator of the AGLOSO. Justice Burton wrote the controlling opinion for the Court in 1951, calling the Attorney General’s actions “arbitrary and unauthorized” because Truman’s loyalty order had not required that organizations be properly investigated before being placed on the list. was compelled to find their AGLOSO listings right.” Brushing aside the government’s posi- “patently arbitrary,” because Truman’s order tion that the AGLOSO caused no direct harm did not authorize the Attorney General to list to listed organizations, Burton declared that them “contrary to the alleged and uncontro- the impact of the AGLOSO listing was to versial facts constituting the entire record be- “cripple the functioning and damage the rep- fore us.” Burton said the situation would be utation of these organizations.” The Attorney “comparable” if “the Attorney General, un- General’s actions were labeled both “arbitrary der like circumstances, were to designate the and unauthorized,” amounting to administra- American National Red Cross as a commu- tive discretion “run riot,” because, according nist organization” in the absence of “any con- to Burton, Truman’s loyalty order had required trary claim asserted against” its general repu- that listings be preceded by “appropriate inves- tation as a charitable and loyal organization. tigation and determination,” yet the Attorney Burton’s opinion flatly rejected the govern- General’s actions had lacked “reliance upon ei- ment’s position on standing and justiciability, ther disclosed or undisclosed facts supplying holding that “the touchstone to justiciability a reasonable basis for the determination.” In is injury to a legally protected right[,] and the present case, Burton said, Truman’s order the right of a bona fide charitable organiza- failed to “authorize, much less direct, the ex- tion to carry on its work, free from defama- ercise of any such absolute power as would tory statements of the kind discussed, is such a permit the inclusion in the Attorney General’s THE GRAPES OF McGRATH 83 list of a designation that is patently arbitrary or granted by the executive order.” The ruling contrary to fact,” but the challenged AGLOSO even failed to indicate whether the entire ex- listings were “unauthorized publications of ad- isting “list”—as opposed to the listing of the mittedly unfounded designations of the com- three challenging organizations—was invalid plaining organizations as ‘Communist.’” pending further proceedings, if the three com- Burton added that it would “obviously” plaining groups were to be “delisted” pend- be contrary to the intent of the Truman or- ing the federal court determination, if all fu- der to “confer power on anyone to act arbitrar- ture AGLOSO designations had to be preceded ily or capriciously—even assuming a constitu- by some kind of “administrative hearing” (as tional power to do so” or to include AGLOSO seemed to be suggested in the footnote ref- designations that were “patently arbitrary and erenced above), or if the sole future recourse contrary to the uncontroversial material facts,” of listed organizations was to challenge their and that an “appropriate” governmental “de- designations in federal court, presumably after termination” had to be “the result of a process considerable damage to their reputations had of reasoning” and not “an arbitrary fiat con- already occurred. Thus, the immediate result trary to the known facts.” Burton concluded, of the ruling was primarily, as the Associated “Whether the complaining organizations are Press reported, to throw a “legal cloud” over in fact Communistic or whether the Attorney the AGLOSO but to clearly establish little be- General possesses information from which he yond that. could reasonably find them to be so must await Jackson’s concurrence, which sometimes determination by the [federal] district court” read like a dissent, complained about the “ex- that had first dismissed the lawsuits. While the travagance” and “intemperance” of some of the only clear mandate of the ruling was to refer opinions, lamenting that it was “unfortunate the cases back to federal district court, in a that this court should flounder in wordy dis- footnote Burton seemed to suggest that if the agreement over the validity and effect of proce- government provided an “administrative hear- dures which have already been pursued for sev- ing” at which organizations proposed for list- eral years,” and declaring that the rulings “may ing were allowed to “present evidence on their create the impression that the decision of the own behalf” and to be informed on the “ev- case does not rise above the political contro- idence on which the designations rest,” that versy that engendered it.” Jackson also blasted might suffice to make the AGLOSO process the Court for its separate ruling issued the same constitutional henceforth. day, upholding by a 4–4 vote (by failing to re- In their concurrences, Black and Douglas verse the lower courts) Dorothy Bailey’sloy- both suggested that the entire loyalty program alty dismissal. Jackson lamented, “This is the was unconstitutional, and Black characterized first time this court has held rights of individu- the entire concept of an official list of sub- als subordinate and inferior to those organized versive organizations (with or without hear- groups,” terming it an “inverted view of the ings) as such. However, Burton’s controlling law” and “justice turned bottom-side up.” He opinion was drawn extremely narrowly to fo- added that it was “beyond my understanding cus only on the “outer limit of the authority how a court whose collective opinion is that of the Attorney General” to list organizations the [AGLOSO] designations are subject to ju- without any kind of legal process. Thus, in a dicial inquiry can at the same time say that a footnote, Burton noted that the Court specif- discharge based at least in part on them is not.” ically declined to rule on the validity of the With regard to the AGLOSO itself, Jackson government’s “acts in furnishing and dissemi- said that “if the only effect of the loyalty or- nating a comparable list in any instance where der was that suffered by the organizations,” he such acts are within the authority purportedly would “think their right to relief very dubious,” 84 JOURNAL OF SUPREME COURT HISTORY because the designation deprived them of “no wind, Frankfurter pointedly declared that the legal right or immunity,” and they suffered nation’s Founding Fathers had “put their trust only due to the “sanctions applied by public in a judiciary truly independent” by making disapproval, not by law.” However, Jackson them “not subject to the fears or allurements continued, because of the AGLOSO’s impact of a limited tenure and by the very nature of upon federal employees accused of association their function detached from passing and par- with listed groups and their inability to chal- tisan influences.” lenge the designations in loyalty proceedings, In his concurrence, Douglas said that the he would reverse the lower court rulings up- “paramount issue of the age” was the need holding the AGLOSO “for lack of due pro- to reconcile the need to provide both “secu- cess in denying a hearing at any stage,” be- rity” and “freedom.” But he warned that when cause “unless a hearing is provided in which the country took “shortcuts by borrowing from the organization can present evidence as to its the totalitarian techniques of our opponents,” character, a presumption of disloyalty is en- it opened the way to “a subversive influence tered against its every member employee, and of our own that destroys us from within,” a because of it, he may be branded disloyal, dis- trend illustrated by the AGLOSO and Bai- charged, and rendered ineligible for govern- ley cases. Douglas declared that organizations ment service.” branded “subversive” by the Attorney Gen- Frankfurter’s concurrence, at twenty-five eral suffered the “real, immediate, and incal- pages by far the longest of the six opinions, culable” injury of being “maimed and crip- declared that the “heart of the matter” was that pled,” and that, as currently administered, the democratic principles implied “respect for the AGLOSO had “no place in our system of law,” elementary rights of men, however suspect or but only planted “within the body politic the unworthy,” particularly the practice of “fair- virus of the totalitarian ideology which we op- ness,” which could “rarely be obtained by se- pose.” Given that the “subversive” label “may cret, one-sided determination of facts decisive well destroy the group against whom” it was of rights,” which served to “maim and decap- directed, Douglas wrote, “when the govern- itate” listed organizations “on the mere say- ment becomes the moving party and levels so of the Attorney General.” Even if the des- its great powers against the citizen, it should ignation directly “imposes no legal sanctions be held to the same standards of fair dealing on these organizations” and “does not directly as we prescribe for other legal contests,” and deprive anyone of liberty or property,” Frank- to let the government adopt “such lesser ones furter wrote, “it would be blindness” to fail to as suits the convenience of its officers is to “recognize that in the conditions of our time start down the totalitarian path.” Douglas ar- such designation,” issued by the “highest law gued that the “rudiments of justice, as we know officer of the government,” in practice “dras- it, call for notice and hearing,” since the gov- tically restricts the organizations, if it does not ernment “cannot by edict condemn or place proscribe them.” He added that “due process” beyond the pale” and “no more critical gov- requirements were “perhaps the most majestic ernmental ruling can be made against an or- concept in our whole constitutional system,” ganization these days” than by branding them and were not “a fair-weather or timid assur- “subversive,” which, under existing practice, ance,” but required respect “in periods of calm “destroys without opportunity to be heard.” and in times of trouble” and should be “partic- Alone among the Justices, Black’s con- ularly heeded at times of agitation and anxiety, currence specifically declared that the gov- when fear and suspicion impregnate the air we ernment had no authority “with or without breathe.” Perhaps suggesting that his dissent- a hearing” to “determine, list, and publicize ing colleagues were bending in the political individuals and groups as traitors and public THE GRAPES OF McGRATH 85 enemies,” a practice he said was “tyrannical” nations did “not require ‘proof’ in the sense of and “smacks of a most evil type of censor- a court proceeding” and “to allow petitioners ship” and one that”effectively punished many entry into the investigation would amount to in- organizations and their members merely be- terference with the executive’s discretion.” Ac- cause of their political beliefs and utterances.” cording to the dissenters, although AGLOSO Black added that AGLOSO proceedings pos- listings presumably could be “hurtful” to the sessed “almost every quality of bills of at- “prestige, reputation, and earning power” of tainder,” which were specifically forbidden by designated groups, those groups lost no First the Constitution, because they amounted to Amendment or property rights, because they “executive investigations, condemnations, and were “not ordered to do anything and are not blacklists as a substitute for imposition of le- punished for doing anything” and were not de- gal types of penalties by courts following trial prived “of liberty of speech or other freedom.” and conviction in accordance with procedu- According to Reed, AGLOSO listings did not ral safeguards of the bill of rights.” But, he even constitute “guilt by association,” because lamented, “[i]n this day when prejudice, hate, they only amounted to a “warning” to federal and fear are constantly invoked to justify irre- officials to “investigate the conduct of the em- sponsible smears and persecutions of persons ployee and his opportunity for harm.” Reed’s even faintly suspected of entertaining unpop- opinion added that the Attorney General’s list ular views, it may be futile to suggest that the sought only to aid loyalty investigations, and cause of internal security would be fostered, was unquestionably “preferable” to investiga- not hurt, by faithful adherence to our constitu- tions of organizations “by each of the more tional guarantees of individual liberty.” Brand- than a hundred” government agencies, while ing the AGLOSO a “much publicized” black- “to require a determination as to each organi- list, Black said the designations of the three zation for the administrative hearing of each complaining organizations found them “guilty employee investigated for disloyalty would be of harboring treasonable opinions and designs” impossible.” The dissenters declared the desig- and “officially branded them as communists,” nations were presumably made after “appropri- labels that “in the present climate of public ate investigation and determination” and that, opinion” and “regardless of their truth or fal- in aid of making loyalty determinations re- sity, are the practical equivalents of confisca- garding federal personnel, “in investigations tion and death sentences for any blacklisted to determine the purposes of suspected orga- organization not possessing extraordinary fi- nizations, the Government should be free to nancial, political, or religious prestige and in- proceed without notice or hearing.” fluence.” The McGrath ruling proved largely a The single dissenting opinion, written Pyrrhic victory for the organizations that of- by Reed and joined by Vinson and Minton, ficially “won” their case, but it marked the be- endorsed all of the government’s key argu- ginning of a very slow and agonizing end for ments, holding that listed organizations suf- the AGLOSO, which ultimately took twenty- fered no concrete damage from the AGLOSO, three years to die. The Justice Department that the AGLOSO’s purpose of aiding gov- stalled and puzzled over McGrath for two ernment personnel loyalty investigations was years before finally issuing, under the new valid, that listed organizations had no “ba- Eisenhower administration in April 1953, a sis for any court action,” and that “in inves- set of AGLOSO hearing regulations that were tigations to determine the purposes of sus- grossly biased in favor of the government. pected organizations, the Government should Organizations that sought to challenge their be free to proceed without notice or hearing” designations were given thirty days to act because such loyalty-program-related desig- and then required to respond to numerous 86 JOURNAL OF SUPREME COURT HISTORY

The Red Scare blacklisting predated the rise to power of Joseph McCarthy, pictured here in 1954 sharing a laugh with his counsel Roy Cohn at a Senate subcommittee session.

detailed inquiries, which effectively forced The ISL hearing was held in 1955 and them to become police informers on them- 1956. The government delayed issuing a find- selves. Moreover, the same Attorney General ing thereafter for two years and the new Attor- who originally sought to designate them made ney General, William Rogers, then abandoned the final decision on that designation after the case on June 18, 1958. In the meantime, obtaining recommendations from hearing of- the Red Scare had markedly diminished, espe- ficers. The new Attorney General, Herbert cially with the Korean War armistice of 1953, Brownell, “relisted” all of the previously des- Democratic victories in the November 1954 ignated 192 AGLOSO groups in April 1953, congressional elections, the Senate censure while also proposing sixty-two additions and of Senator McCarthy the following month, a announcing the new hearing rules. However, growing storm of congressional and other crit- the effect of being listed was so devastat- icism of the AGLOSO and other Red Scare ex- ing, the requirements to obtain a hearing so cesses after 1954, and an increasing inclination onerous, and the government so determined of the Supreme Court to strike down govern- to avoid granting hearings that only one such ment “anti-subversive” measures after 1956. hearing was ever held, involving the minis- The government never designated any more cule Independent Socialist League (ISL) and AGLOSO organizations after 1954, and in two two affiliated organizations. In all other cases, 1957 cases agreed to “delist” two Lithuanian the listed groups were already defunct, failed organizations that challenged their listings in to request hearings, or asked but were de- court, for fear that that the Supreme Court nied them on the grounds that their responses would declare the AGLOSO unconstitutional to the government’s detailed inquiries were in toto if the cases reached them. Similar con- inadequate.22 cerns led the Justice Department to drop efforts THE GRAPES OF McGRATH 87 to list the National Lawyers Guild in 1958, af- peal in this case) and the JAFRC disbanded in ter five years of litigation.23 early 1955, citing government “harassments, As the AGLOSO gradually diminished in persecutions, and prosecutions” that made it public consciousness and became increasingly “impossible to carry on” its “good and nec- moribund in general, Supreme Court rulings essary work.” Ten years after it first sued the in the 1960s effectively dismantled the 1950 government over its AGLOSO designation, the McCarran Act, designed to force “Commu- NCASF threw in the legal towel in March 1957, nist” and “Communist front” groups to “regis- following a federal appeals court ruling that, ter” with the government following hearings by not seeking an administrative hearing under before the SACB. After the SACB then in- the 1953 Justice Department regulations, the creasingly came under attack in the late 1960s organization had failed to exhaust its available as having nothing to do and serving as a po- administrative remedies and therefore was not litical sinecure, President Richard Nixon at- entitled to relief in the courts. The organiza- tempted to revive both the AGLOSO and the tion won a small triumph in May 1963, when SACB by issuing Executive Order 11605 on a federal appeals court held that the SACB’s July 2, 1971, which transferred to the SACB 1956 finding that it was a “communist front” the power to designate AGLOSO organizations was based on “negligible” evidence and could following referrals from the Attorney General not be sustained. None of the nation’s major and hearings, a response both to McGrath and newspapers reported the ruling.25 to criticism that, under the 1953 Justice De- partment AGLOSO regulations, the Attorney General acted as both prosecutor and judge. ENDNOTES

However, as opposition to the Vietnam War ∗This article is drawn from Professor Goldstein’s book, and to growing revelations of government spy- scheduled for late 2008 publication by the University Press ing rose in the 1960s, Nixon was bitterly at- of Kansas, American Blacklist: The Attorney General’s tacked in Congress for seeking to both foster List of Subversive Organizations. repression and usurp congressional authority 1Pertinent parts of Truman’s loyalty order are reprinted in Ellen Schrecker, The Age of McCarthyism: A Brief by his executive order, with the legislative op- History with Documents (Boston: Bedford, 2002), p. 175. position lead by Senator Sam Ervin (D-NC) in 2Alan Barth, The Loyalty of Free Men (New York:Pocket what amounted to a preview of the Watergate Books, 1952), p. 110. hearings Ervin would lead soon thereafter. In 3See “Collateral Consequences of the Attorney General’s 1972, Congress killed the SACB by defund- List,” Digest of the Public Record of Communism in the ing it, and in 1974, by then deeply enmeshed United States (New York: Fund for the Republic, 1955), pp. 77–78. Surprisingly little has been published (aside in the Watergate scandal, Nixon abolished from some rather technical law review articles) specifi- the AGLOSO via Executive Order 11785, cally about the Attorney General’s List of Subversive Or- signed on June 4, 1974, two months before his ganizations (AGLOSO), but see Eleanor Bontecou, The resignation.24 Federal Loyalty-Security Program (Ithaca, N.Y.: Cor- The three McGrath organizations took nell University Press, 1953), pp. 157–204; and Robert Justin Goldstein, “Prelude to McCarthyism: The Making their case back to federal district court in late of a Blacklist,” Prologue (2006), 38, # 3, pp. 22–33. On 1951 to determine if the government was justi- the Red Scare in general, see Richard Fried, Nightmare fied in its AGLOSO designations—which the in Red: The McCarthy Era in Perspective (New York: government never removed—as provided for Oxford University Press, 1990); Ellen Schrecker, Many by McGrath. Before the years of litigation that Are the Crimes: McCarthyism in America (Boston: Lit- followed were completed, the IWO was liqui- tle, Brown, 1998); and David Caute, The Great Fear: The Anti-Communist Purge under Truman and Eisen- dated as an insurance corporation in 1953 as a hower (New York: Simon & Schuster, 1978). result of judicial proceedings in New York(the 4FBI document obtained under the Freedom of Informa- Supreme Court refused to hear the IWO’s ap- tion Act. 88 JOURNAL OF SUPREME COURT HISTORY

5Barth, Loyalty of Free Men, p. 111. Justices Tom Clark (Tarlton Law Library, the University 6Schrecker, The Age of McCarthyism,p.40. of Texas at Austin), Stanley Reed (University of Kentucky 7Athan Theoharis, Seeds of Repression: Harry S. Tru- Library), Harold Burton (Library of Congress), Harold man and the Origins of McCarthyism (Chicago: Quad- Vinson (University of Kentucky), Robert Jackson (Library rangle, 1971), pp. 106–7. of Congress), Hugo Black (Library of Congress), Felix 8Athan Theoharis, “The Escalation of the Loyalty Frankfurter (Library of Congress), and William Douglas Program,” in Politics and Policies of the Truman (Library of Congress). Administration, ed. Barton J. Bernstein (Chicago: Quad- 21Joint Anti-Fascist Refugee Committee v. McGrath, 341 rangle, 1970), p. 264. U.S. 123 (1951). 9See Eisenhower Presidential Library, Central Files, Of- 22Washington Post [hereinafter WP], New York Times fice File, 133–E-10, Box 662 for examples of government [hereinafter NYT], Los Angeles Times [hereinafter LAT], documents that refer to AGLOSO-listed groups as “black- April 30, 1953; WP, May 4, 1953. The new regulations listed.” and complete listing were published in the May 12, 1953 10341 U.S. 123 (1951). Federal Register. 11For the JAFRC I have relied upon newspaper articles 23On the ISL case, see Olive Golden, “Administration of and court rulings. For the NCASF I have used, in addition the Attorney-General’s List of Subversive Organizations: to such sources, the organization’s archival materials in The Case of the Workers Party—Independent Socialist the Tamiment Library at New York University and also League,” University of Chicago M.A., August, 1962. The Louis Nemzer, “The Soviet Friendship Societies,” Public dropping of AGLOSO proceedings against the Associa- Opinion Quarterly, 13 (Summer, 1949), pp. 265–84. The tion of Lithuanian Workers and the American Lithuanian IWO is thoroughly covered in two books: Thomas Walker, Workers Literary Association received virtually no press Pluralistic Fraternity: The History of the International coverage, but it is documented in the National Archives, Workers Order (New York: Garland, 1991) and Arthur Department of Justice, Record Group 60, file 146-200- Sabin, Red Scare in Court: New York v. the International 2-012; see especially the October 4, 1957 file memo- Workers Order (Philadelphia: University of Pennsylvania randum by Executive Assistant to the Attorney General Press, 1993). Harold Healy, Jr. On the National Lawyers Guild’sor- 12The district court briefs are included in the organiza- deal, see Percival Bailey, “Progressive Lawyers: A His- tions’ petitions for certiorari before the Supreme Court: tory of the National Lawyers Guild, 1936–1958,” Ph.D., NCASF v. McGrath, petition filed January 23, 1950; IWO Rutgers University, 1979. For press coverage, see WP, v. McGrath, filed May 11, 1950; JAFRC v. McGrath, filed NYT, Chicago Tribune [hereinafter CT], September 13, January 25, 1950. Unless otherwise indicated, all legal 1958. On mounting attacks on AGLOSO, see Robert Justin materials pertaining to this case were examined in the Goldstein, “‘Raising Cain’: Senator Harry Cain and His Supreme Court library. Attack on the Attorney General’s List of Subversive Or- 13The district court rulings are included in the briefs re- ganizations,” Pacific Northwest Quarterly, 98 (2007), pp. ferred to supra note 12. 64–77. 14JAFRC v. Clark, 177 F. 2d 79 (1949), IWO v. McGrath, 24On the SACB and its fate, see Ellen Schrecker, “In- 182 F. 2d 368 (1950). Judge Edgerton dissented again troduction” to microfilm records of the SACB, 1950– in the latter case. The NCASF case was decided with- 1972 (Frederick, MD: University Publications of Amer- out opinion on October 25, 1949, citing the JAFRC ruling ica, 1989). Nixon’s executive orders were published in the (U.S. Court of Appeals for the District of Columbia, No. Federal Register, July 7, 1971 and June 6, 1974. For sam- 10,165). The briefs are included in the petitions to the ples of the extensive press coverage, see Washington Star, Supreme Court for certiorati, referenced supra note 12. July 8, 1971; NYT, CT, July 16, 1971; Philadelphia In- 15West Virginia Board of Education v. Barnette, 319 U.S. quirer, July 9, 1971; NYT, LAT, WP, June 6, 1974. For the 624 (1943). Otherwise, see sources cited supra note 12 for Ervin hearings, see “President Nixon’s Executive Order this and the following paragraph. 11605,” Hearings before the Subcommittee on Separation 16Brief for Respondents in opposition, JAFRC v. McGrath, of Powers of the Committee on the Judiciary, U.S. Senate, March 1950. 92nd Cong., 1st Sess., October 5, 7, 1971. 17Brief for Petitioner, NCASF v. McGrath, filed September 25The IWO’s fate is thoroughly covered in Sabin, Red 20, 1050. Scare. The dissolution of the JAFRC is reported in 18Brief for Petitioner, IWO v. McGrath, October 13, 1950; NYT, February 16, 1955. For developments concerning Brief for Petitioner, JAFRC v. McGrath, filed September the NCASF, see the NCASF archives, held at the Tami- 29, 1950. ment Library, New York University, Collection Num- 19Brief for respondents, JAFRC v. McGrath, October, ber 134. The court ruling setting aside the SACB’s 1950. finding is NCASF v. SACB, 322 F. 2d 375 (D.C.C.A. 20The following paragraphs are based on the papers of 1963).