Dennis v. United States (339 U.S. 162)/Dissent Frankfurter
Mr. Justice FRANKFURTER, dissenting.

Acquiescence in a precedent does not require approval of its extension. Although I adhere to the views expressed by Mr. Justice Jackson for the minority in Frazier v. United States, 335 U.S. 497, 514, 69 S.Ct. 201, 210, I do not urge that it be overruled. But in abiding by it I need not assent to enlarging the areas of its undesirability. The constitutional command for trial by an 'impartial jury' casts upon the judiciary the exercise of judgment in determining the circumstances which preclude that free, fearless and disinterested capacity in analyzing evidence which is indispensable if jurymen are to deal impartially with an accusation. The judgment that a court must thus exercise in finding 'disqualification for bias' of persons who belong to a particular class is a psychological judgment. It is a judgment founded on human experience and not on technical learning. And so it does not follow that merely because government employees are not automatically disqualified as jurors in every prosecution in the District of Columbia they should not be disqualified in prosecutions that are deemed to concern the security of the nation.

The reason for disqualifying a whole class on the ground of bias is the law's recognition that if the circumstances of that class in the run of instances are likely to generate bias, consciously or unconsciously, it would be a hopeless endeavor to search out the impact of these circumstances on the mind and judgment of a particular individual. That is the reason why the influences of consanguinity or of financial interest are not individually canvassed. Law as a response to life recognizes the operation of such influences even though not consciously or clearly entertained. The appearance of impartiality is an essential manifestation of its reality. This is the basic psychological reason why the Founders of this country gave the judiciary an unlimited tenure. Impartiality requires independence, and independence, the Framers realized, requires freedom from the effect of those 'occasional ill-humors in the society,' which as Alexander Hamilton put it in The Federalist are 'the influence of particular conjunctures.' The Federalist, No. 78 at 400 (Beloff ed. 1948).

One of the greatest of judges has assured us that 'Judges are apt to be naif, simple-minded men.' Holmes, Collected Legal Papers 295. Only naivete could be unmindful of the force of the considerations set forth by Mr. Justice BLACK, and known of all men. There is a pervasiveness of atmosphere in Washington whereby forces are released in relation to jurors who may be deemed supporters of an accused under a cloud of disloyalty that are emotionally different from those which come into play in relation to jurors dealing with offenses which in their implications do not touch the security of the nation. Considering the situation in which men of power and influence find themselves through such alleged associations, it is asking more of human nature in ordinary government employees than history warrants to ask them to exercise that 'uncommon portion of fortitude' which the Founders of this nation thought judges could exercise only if given a life tenure. The Federalist, supra.

A government employee ought not to be asked whether he would feel free to decide against the Government in cases that to the common understanding involve disloyalty to this country. Questions ought not to be put to prospective jurors that offer no fair choice for answer. Men ought not to be asked in effect whether they are brave or wholly indifferent to the enveloping atmosphere. They should not be asked to confess that they are weaklings nor should it be assumed that they are fully conscious of all the pressures that may move them. They may not know what judges of considerable forensic experience know, that one cannot have confident knowledge of influences that may play and prey unconsciously upon judgment. See, e. g., Mr. Justice Oliver in Rex v. Davies, [1945] 1 K. B. 435, 445. The well-known observations of Mr. Justice Holmes on these psychological influences are here pertinent: 'This is not a matter for polite presumptions; we must look facts in the face. Any judge who has sat with juries knows that, in spite of forms, they are extremely likely to be impregnated by the environing atmosphere.' Frank v. Mangum, 237 U.S. 309, 345, 349, 35 S.Ct. 582, 594, 595, 59 L.Ed. 969. Nor is it irrelevant to note that we are living in a time when inroads have been made on the secrecy of the jury room so that, upon failure to agree, jurors are subjected to harassment to disclose their position in the jury room. Ought we to expose our administration of criminal justice to situations whereby federal employees must contemplate inquisitions into the manner in which they discharged their juror's oath?

To conclude that government employees are not disqualified in prosecutions inherently touching the security of the Government, at a time when public feeling on these matters is notoriously running high, because they are not ipso facto disqualified from sitting in a prosecution against a drug addict or a petty thief, is to say that things that are very different are the same. The doctrine of the Frazier case does not require such disregard of the relevant. To recognize the existence of what is characterized as a phobia against a particular group is not to discriminate in its favor. If a particular group, no matter what its beliefs, is under pressure of popular hostility, exclusion of potential jurors peculiarly susceptible to such pressure is not an expression of regard for political opinions but recognition by law of the facts of life. It does not follow that because members of different but respected political parties can sit in judgment upon one another where punishment is involved, all members of such parties, no matter what their relation to an operating bias, can freely and fairly sit in judgment upon those belonging to an ostracized group.

Let there be no misunderstanding. To recognize the existence of a group whose views are feared and despised by the community at large does not even remotely imply any support of that group. To take appropriate measures in order to avert injustice even towards a member of a despised group is to enforce justice. It is not to play favorites. The boast of our criminal procedure is that it protects an accused, so far as legal procedure can, from a bias operating against such a group to which he belongs. This principle should be enforced whatever the tenets of the group-whether the old Locofocos or the Know-Nothings, the Ku Klux Klan or the Communists. This is not to coddle Communists but to respect our professions of equal justice to all. It was a wise man who said that there is no greater inequality than the equal treatment of unequals.

We are concerned with something far more important than sustaining a particular conviction. Many and conflicting are the criteria by which a society is to be deemed good, but perhaps no test is more revealing than the characteristics of its punitive justice. No single aspect of our society is more precious and more distinctive than that we seek to administer criminal justice according to morally fastidious standards. These reveal confidence in our institutions, respect for reason, and loyalty to our professions of fairness. The powerful claim in behalf of our civilization represented by our system of criminal justice will be vindicated and strengthened if those who in the popular mind appear to threaten the very existence of the Government are tried by citizens other than those in the immediate employ of the Government at the seat of Government. 

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