Dennis v. United States (339 U.S. 162)/Concurrence Jackson
Mr. Justice JACKSON, concurring in the result.

In but two ways could the Court avoid affirming the conviction of Dennis. One is to rescind the general rule established in Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, that a jury is, in contemplation of law 'impartial,' even when entirely composed of government employees. The other is to retain, and thereby strengthen, that general rule but create a special exemption for Communists.

I adhere with increasing conviction to my dissent in Frazier v. United States, supra, 335 U.S. at page 514, 69 S.Ct. at page 210. The Court there dug a pit dangerous for civil liberties. The right to fair trial is the right that stands guardian over all other rights. Reference to the reports will show what otherwise one would not believe: that the Court, by a bare majority, held it to be entirely fair to try a person before a jury consisting solely of government employees, plus the fact that one juror and the wife of another worked in the office of the department head responsible for enforcement of the law charged to be violated. The common instinct of men for fair dealing and the experience of trial lawyers alike reject this holding. Whenever any majority can be mustered to overrule that weird and misguided decision, I shall be one of it.

But the way for the Court to get out of the hole it fell into with Frazier is not to dig another and worse one. We are actually urged to hold that the kind of jury a defendant may have depends upon his political opinions or affiliations. The offense for which Dennis was tried was contempt of a Committee of Congress. That is not an offense that touches the immediate security of the Nation. Nor does guilt or innocence depend upon defendant's political views or party membership. Of course, he is, and the jury was bound to learn that he is, a prominent figure in the Communist Party. But the same acts would be the same offense if he were an orthodox Democrat. The sole ground for creating an exemption from the Frazier rule is that the defendant is a Communist, and Communists are now exceedingly unpopular in Washington. I agree that this highlights the unfairness of the Frazier rule and provides reason for overruling it; but I do not agree that it justifies the proposed exception to that decision.

The Frazier doctrine was promulgated by a majority of the Court which well knew that its rule would apply to this type of case and in these times. That decision was handed down on December 20, 1948, with this present case just around the corner. Dennis had already been convicted and his conviction had been affirmed in highly publicized proceedings occurring only a few city blocks from us; and his petition for certiorari had been filed in this Court. The four of us dissenting in Frazier warned specifically that the Government in these times is using its power as never before to pry into lives and thoughts of government employees. All that is urged now is more of the same and there is nothing in this situation that should not have been within the contemplation of the Court when the Frazier case was decided the way it was. The proposal now is a partial repeal-for Communists only.

Courts should give to a Communist every right and advantage that they give to any defendant. But it is inconceivable that being a Communist can entitle a defendant to more. Let us picture the proposal in operation. Two defendants are brought to trial for contempt of Congress. One, a Communist, has defied the UnAmerican Activities Committee. The other, a Republican, has defied the Committee investigating the State Department. Both make well-founded claims that the Executive branch of the Government is hostile to them; both ask to exclude its employees from the jury so they may be tried by persons under no obligation to their adversaries. The proposal is that the trial judge should grant the motion of the Communist and deny that of the Republican! What then becomes of equal justice under law?

It is true that Communists are the current phobia in Washington. But always, since I can remember, some group or other is being investigated and castigated here. At various times it has been Bundists and Germans, Japanese, lobbyists, tax evaders, oil men, utility men, bankers, brokers, labor leaders, Silver Shirts and Fascists. At times, usually after dramatic and publicized exposures, members of these groups have been brought to trial for some offense. I think that none of them at such times ever should be forced to defend themselves against the Government's accusations before the Government's employees. But so long as accused persons who are Republicans, Dixiecrats, Socialists, or Democrats must put up with such a jury, it will have to do for Communists.

Mr. Justice BLACK, dissenting. 

Notes