LIMITATION OF APPELLATE JURISDICTION OF THE UNITED STATES SUPREME COURT HEARING BEFORE THE SUBCOMMITTEE TO INVESTIGATE THE COMMITTEE ON THE JUDICIARY JAMES 0. EASTLAND, Mississippi, Chairman ESTES KEFAUVER, Tennessee ALEXANDER WILEY, Wisconsin OLIN D. JOHNSTON, South Carolina WILLIAM LANGER, North Dakota THOMAS C. HENNINGS, JR., Missouri WILLIAM E. JENNER, Indiana JOHN L. MCCLELLAN, Arkansas ARTHUR V. WATKINS, Utah JOSEPH C. O'MAHONEY, Wyoming EVERETT MCKINLEY DIRKSEN, Illin MATTHEW M. NEELY, West Virginia JOHN MARSHALL BUTLER, Maryland SAM J. ERVIN, JR., North Carolina ROMAN L. HRUSKA, Nebraska SUBCOMMITTEE TO INVESTIGATE THE ADMINISTRATION OF THE INTERNAL SECU ACT AND OTHER INTERNAL SECURITY LAWS JAMES 0. EASTLAND, Mississippi, Chairman ARTHUR V. WATKINS, Utah JOHN MARSHALL BUTLER, Marylan MATTHEW M. NEELY, West Virginia ROMAN L. HRUSKA, Nebraska ROBERT MORRIS, Chief Counsel II INVITATION OF APPELLATE JURISDICTION OF THE UNITED STATES SUPREME COURT WEDNESDAY, AUGUST 7, 1957 UNITED STATES SENATE Washington, D.C. - subcommittee met, pursuant to call, at 2:35 p. m. in room United States Capitol Building, Senator James O. Eastland, simman, presiding. lit: Senator Eastland. - Present: Robert Morris, chief counsel; Julien G. Sourwine, Le counsel; Benjamin Mandel, research director. CHAIRMAN. Let's have order. Proceed. DENT OF HON. WILLIAM E. JENNER, SENATOR FROM THE STATE OF INDIANA 35. JENNER. Mr. Chairman, I am grateful for this opportunpear and testify on behalf of my bill, S. 2646, to limit the e jurisdiction of the Supreme Court in certain cases. ll referred to is as follows:) [S. 2646, 85th Cong., 2d sess.) Pa ilmit the appellate jurisdiction of the Supreme Court in certain cases. arted by the Senate and House of Representatives of the United America in Congress assembled, That (a) chapter 81 of title 28 of * States Code is amended by adding at the end thereof the following citation on appellate jurisdiction of the Supreme Court. Landing the provisions of sections 1253, 1254, and 1257 of this de Supreme Court shall have no jurisdiction to review, either by ap f certiorari, or otherwise, any case where there is drawn into quesily of 115 function or practice of, or the jurisdiction of, any committee or wittee of the United States Congress, or any action or proceeding a witness charged with contempt of Congress ; any action, function, or practice of, or the jurisdiction of, any offiPory of the executive branch of the Federal Government in the ration of any program established pursuant to an Act of Congress rive for the elimination from service as employees in the executive : individuals whose retention may impair the security of the tates Government; any statute or executive regulation of any State the general pur2-h is to control subversive activities within such State; “(4) any rule, bylaw, or regulation adopted by a school board, board of education, board of trustees, or similar body, concerning subversive activities in its teaching body; and “(5) any law, rule, or regulation of any State, or of any board of bar examiners, or similar body, or of any action or proceeding taken pursuant to any such law, rule, or regulation pertaining to the admission of persons to the practice of law within such State." (b) The analysis of such chapter is amended by adding at the end thereof the following new item : "1258. Limitation on the appellate jurisdiction of the Supreme Court.” Senator JENNER. As the committee knows, I discussed this bill and the reasons back of it at considerable length in a speech on the floor of the Senate. I should like to ask that the text of that speech be included in this hearing record. May it go in, Mr. Chairman? The CHAIRMAN. Anything you want will be put in the record. (The text of the speech follows:) Just about a year agomin June 1956—a member of the United States Senate declared, in a speech on the Senate floor, that "if the Supreme Court had another 3 or 4 months to hand down decisions which help the Communist Party, our Government and our institutions might well be at the mercy of the Communist conspiracy by the end of the summer." Decisions which the Supreme Court have handed down since that time hare gone infinitely in undermining efforts of the people's representatives at both the national and State levels to meet and master the Communist plot against the security and freedom of this Nation. No conceivable combination of votes in the Congress could have done as much damage to our legislative barriers against communism and subversion as the Supreme Court of the United States has done by its recent opinions. The Supreme Court has dealt a succession of blows at key points of the legis lative structure erected by the Congress for the protection of the internal secu rity of the United States against the world Communist conspiracy. Time after time, Congress has acted to shore up these legislative bulwarks and time after time, the Supreme Court has knocked the props out from unde the structure which Congress has built. There was a time when the Supreme Court conceived its function to be th interpretation of the law. For some time now, the Supreme Court has bee making law-substituting its judgment for the judgment of the legislativ branch. There was a time when a Justice of the Supreme Court might dissent in a cas of first impression, but could be relied upon to decide the next case involvin similar points in accordance with the prior decision of the Court, notwithstan ing his own prior dissent. This was because Justices of the Supreme Cou respected the Court and respected the principle of stare decisis. Nowaday individual members of the Supreme Court are constantly busy defending the own positions, and a Justice who files a minority opinion on a particular poi can usually be expected to stick to that opinion whenever the point is raise thus keeping the Court constantly split. By a process of attrition and accession, the extreme liberal wing of the Cou has become a majority; and we witness today the spectacle of a Court co stantly changing the law, and even changing the meaning of the Constitutio in an apparent determination to make the law of the land what the Court thin it should be. Laymen and lawyers, the legislative branch and the executive branch of Go ernment, have come to recognize the predilection of the Supreme Court f making new law. Even the lower courts have come to expect it, with the resu that it has become commonplace for decisions to be held up in lower courts wai ing for the Supreme Court to make some new law that will apply to the case. A particular flagrant example is the case of Albert Blumberg, convicted March 1956 of violation of the Smith Act, but not yet sentenced, and now like to be turned loose through application of the new doctrine enunciated by t Supreme Court in the Jencks case. A jury convicted Blumberg in March of 1956; and in May of 1956 Judge Krat in Philadelphia, heard argument on a defense motion to set aside the verdict an for an acquittal. Judge Kraft never acted on that motion, and is free now arris the Supreme Court's decision in the Jencks case to the facts and issues te Blomberg trial held a year ago last March. Tse Jeuks case, as you know, is one of a group of very recent decisions which Te gube even farther and faster than the Court ever has gone before in the ration of the left. There can be no doubt that the total effect of these decisions of the Supreme Croan has been to weaken the Government's efforts against Communists and bersites BF sume of these decisions, antisubversive laws and regulations have been derni ineffective. States have been denied the right to fight subversion, and Lite veo denied the rigbt to bar Communists from practicing law. Violators col Peleral antisubversive laws have been turned loose on flimsy technicalities. luidential files of the FBI and of other investigative and law-enforcement azes have been opened up to fishing expeditions by defendants and their Li The ( ourt has challenged the authority of Congress to decide upon the lipe of its own investigations and the right of a congressional committee to Lap its own mind about what questions to ask its witnesses. Nas pending cases may be affected, and an undetermined number of cases prraly settled may be reopened, as a result of recent decisions of the Supreme fert, regardless of what Congress may find it possible to do toward curing the 4uation, because while Congress cannot make a new law that will affect a case airesily tried, the Supreme Court can, and does. The Supreme Court can change eritILizi a rule of law 100 years old, and can make the new rule apply to all y underway, and provide a basis for reopening cases already tried which Dvered the point covered by the new rule. Toere is no way for Congress to invalidate or repeal a decision of the Supreme Part of the Cnited States, even when that decision is legislative and policy22.rz in nature. Congress can in some cases strike down judge-made law by **"arting new law, or by correcting the Court's error, respecting the intent of ces, by a new declaration of intent. This power of the Congress should Ieprised to the maximum of course; but it will not fully meet the situation. The unrt has become for all practical purposes a legislative arm of the Govern '. and many of its feats are subject to no review. 1+ 3,5 at some of the Supreme Court's recent decisions which had particular .:.1918 of a legislative nature. 19:01:5 the closing weeks of its 1956 session the Court decided the case of *. Pennsylrania, and in that decision threw a roadblock against the efforts the wyple to check the spread of Communist power through their State gov"I The Court told the sovereign States that even though they themselves Enne in danger of being overthrown by the Communist conspiracy, they 2.htire act, because, said the Court, Congress had “pre-empted" the field. "2-3$ general from several of the States last year came to Washington to br the Supreme Court's decision in the Nelson case had completely and their previously effective efforts against the Communist conspiracy ber States. We had the attorney general from the State of Massachufamily that as a result of this decision 15 Communists against whom action disn takeo had to be let loose to go ahead with their subversive activity. iet" outlined by the testimony of these several attorneys general of *** D States was so threatening that the senior Senator from New Hampshire 124L to observe that if the Communist threat should become more serious is state, the people would have to take the law into their own hands. Asrl 9, 19.5., 1 week later, we had to recoil in our deliberations when the *Lemn Court, in the slochower case, drew the circle even tighter and L'at bunicipal authorities could not take action to get rid of Communist EX, who defied a legally constituted body when they had an obligation 1h, and by such tlagrant misconduct scandalized the mothers and fathers Ste their children to the care of the city. New York City had to * -pt of these trachers with back pay, and Professor Slochower himself 3: 1-jetunity of $10.000 because of the consequences of this highly arbitrary IT s decision of the Supreme Court. One has only to read the brief Futb the Supreme Court by New York City in its quest for reargument to rechlessness of the Supreme Court's decision in that case. In its the Court put forth a conclusion to support its findings which con• Vrw York City convincingly shows was not supported by the record. 2.3 tra, it dot supported by the record, but the corporation counsel of the AS-* York irrefutably showed that the very opposite conclusion was - Bat the Supreme Court was unmoved. |