Eisler v. United States/Dissent Jackson

by Robert H. Jackson

United States Supreme Court

338 U.S. 189

Eisler  v.  United States

 Argued: March 28, 1949. --- Decided: June 27, 1949

Mr. Justice JACKSON, dissenting.

I cannot agree that a decision of Eisler's case should be indefinitely deferred, awaiting what I do not know. The case is fully submitted and all that remains is for members of the Court to hand down their opinions and the decision. Eisler's presence for that would be neither necessary nor usual. The case has reached this stage at considerable detriment to the country, since this Court's grant of his petition for review was what delayed Eisler's commencement of sentence and afforded him opportunity to escape. If ever there were good reasons to grant him a review, they are equally good reasons for now deciding its issues.

The Rules of this Court provide that we shall grant a petition for review here only where there are 'special and important reasons therefor.' They limit such cases to those that present 'a question of general importance * * * which has not been, but should be, settled by this court.' Rule 38, 28 U.S.C.A. (Emphasis supplied.)

Under our practice, the grant of Eisler's petition meant that four Justices of ths Court, at least, were in agreement that the questions he raised were of this description. If they were then, they are still. His petition challenged the power of Congress and its investigating committees to hold, and to control the procedures of, investigations of this nature. These questions are recurring ones, certain to be repeated, for the grant of a review has cast doubt not only on the validity of Eisler's conviction but upon congressional procedures as well. No one can know what the law is until this case is decided or until someone can carry a like case through the two lower courts again to get the question here.

Decision at this time is not urged as a favor to Eisler. If only his interests were involved, they might well be forfeited by his flight. But t is due to Congress and to future witnesses before its committees that we hand down a final decision. I therefore dissent from an expedient that lends added credence to Eisler's petition, which I think is without legal merit. I do not think we can run away from the case just because Eisler has.

I should not want to be understood as approving the use that the Committee on Un-American Activities has frequently made of its power. But I think it would be an unwarranted act of judicial usurpation to strip Congress of its investigatory power, or to assume for the courts the function of supervising congressional committees. I should affirm the judgment below and leave the responsibility for the behavior of its committees squarely on the shoulders of Congress. ^[1]

Notes

1. What the Congress can with safety do, after this Court's decision in Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, seems to present a good question.