United States v. Bryan/Concurrence Jackson
Mr. Justice JACKSON, concurring.

With the result I am in agreement, but I do not see how this decision and that in the Christoffel case, 338 U.S. 84, 69 S.Ct. 1447, can coexist.

The Court is agreed that this defendant could rightly demand attendance of a quorum of the Committee and decline to testify or to produce documents so long as a quorum was not present. Therefore the real question here is whether, without making any demand, the issue may be raised for the first time long afterwards in a trial for contempt.

This case is the duplicate of Christoffel in this respect: in both cases defendants have sought to raise the question of no quorum for the first time in court, when they are on trial for an offense, without having raised it in any manner before the Committee while there was time to remedy it. The Court is now saying, quite properly I think, that this question must be raised at the time when it can be corrected, and proper records made, and cannot be kept as an ace up the sleeveto be produced years later at a trial. But in Christoffel, the majority took the opposite view and said, 'In a criminal case affecting the rights of one not a member, the occasion of trial is an appropriate one for petitioner to raise the question.' Supra, 338 U.S. at page 88, 69 S.Ct. at page 1450. If this statement of the law is to be left standing, I do not see how we can say that what was timely for Christoffel is too late for Bryan. It is plain we are not following the Christoffel decision and so I think we should candidly overrule it.

The practice of withholding all objection until time of trial is not helpful in protecting a witness' right to a valid Committee. It prevents correction of any error in that respect and profits only the witness who seeks a concealed defect to exploit. Congressional custom, whether written or not, has established that Committee Members may indulge in temporary absences, unless there is objection, without disabling those remaining from continuing work as a Committee. Members may step out to interview constituents, consult members of their staffs, confer with each other, dictate a letter, or visit a washroom, without putting an end to the Committee-but always subject to call whenever the point of no quorum is raised; that is notice that someone deems their personal presence important. This is the custom Christoffel, in effect, denied to members of Congress. A Member now steps out of a committee room at risk of nullifying the whole proceeding.

It is ironic that this interference with legislative procedures was promulgated by exercise within the Court of the very right of absentee participation denied to Congressmen. Examination of our journal on the day Christoffel was handed down shows only eight Justices present and that four Justices dissented in that case. The prevailing opinion does not expressly indicate the Justices who joined in it, but only four nondissenting Justices were present to do so. On the record this would show only an equally divided Court, which would affirm the judgment below. The only way the four who were present and for a reversal could have prevailed was by counting for it one shown by the record to be absent. There is not even any public record to show that in absentia he joined the decision, or approved the final opinion, or considered the matter after the dissent was circulated; nor is there any written rule or law which permitted him to do so.

I want to make it clear that I am not criticizing any Justice or suggesting the slightest irregularity in what was done. I have no doubt that authorization to include the absent Justice was given; and I know that to vote and be counted in absentia has been sanctioned by practice and was without objection by anyone. It is the fact that it is strictly regular and customary, according to our unwritten practice, to count as present for purposes of Court action one physically absent that makes the denial of a comparable practice in Congress so anomalous. Of course, there is this difference: The absent Congressman was only necessary to a quorum; the absent Justice was necessary to a decision. No Committee action was dependent upon the Representatives presumed to be absent in the Christoffel case. All they could have done if present was to listen. In our own case, personal judgment and affirmative action of the absent member was necessary to make the Christoffel opinion a decision of the Court.

The ruling of the Court today seems irreconcilable with the Court's decision in that case. True, the ink on Christoffel is hardly dry. But the principle of stare decisis, which I think should be the normal principle of judicial action, is not well served by failing to make explicit an overruling which is implicit in a later decision. Unless we really accede to its authority, it were far better to undo Christoffel before it becomes embedded in the law as a misleading influence with the profession. Of course, it is embarrassing to confess a blunder; it may prove more embarrassing to adhere to it. In view of the holding today, I think that the decision in the Christoffel case should be forthrightly and artlessly overruled.

Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER concurs, dissenting. 

Notes