Green v. United States (356 U.S. 165)/Concurrence Frankfurter

by Felix Frankfurter

United States Supreme Court

356 U.S. 165

Green  v.  United States (356 U.S. 165)

 Argued: Oct. 21, 1957. --- Decided: March 31, 1958

Mr. Justice FRANKFURTER, concurring.

In joining the Court's opinion I deem it appropriate to add a few observations. Law is a social organism, and evolution operates in the sociological domain no less than in the biological. The vitality and therefore validity of law is not arrested by the circumstances of its origin. What Magna Carta has become is very different indeed from the immediate objects of the barons at Runnymede. The fact that scholarship has shown that historical assumptions regarding the procedure for punishment of contempt of court were ill-founded, hardly wipes out a century and a half of the legislative and judicial history of federal law based on such assumptions. Moreover, the most authoritative student of the history of contempt of court has impressively shown that 'from the reign of Edward I it was established that the Court had power to punish summarily contempt committed * * * in the actual view of the Court.' Fox, History of Contempt of Court, 49-52.

Whatever the conflicting views of scholars in construing more or less dubious manuscripts of the Fourteenth Century, what is indisputable is that from the foundation of the United States the constitutionality of the power to punish for contempt without the intervention of a jury has not been doubted. The First Judiciary Act conferred such a power on the federal courts in the very act of their establishment, 1 Stat. 73, 83, and of the Judiciary Committee of eight that reported the bill to the Senate, five members including the chairman, Senator, later to be Chief Justice, Ellsworth, had been delegates to the Constitutional Convention. ^[1] In the First Congress itself no less than nineteen members, including Madison who contemporaneously introduced the Bill of Rights, had been delegates to the Convention. And when an abuse under this power manifested itself, and led Congress to define more explicitly the summary power vested in the courts, it did not remotely deny the existence of the power but merely defined the conditions for its exercise more clearly, in an Act 'declaratory of the law concerning contempts of court.' Act of Mar. 2, 1831, 4 Stat. 487. Although the judge who had misued the power was impeached, and Congress defined the power more clearly, neither the proponents of the reform nor Congress in its corrective legislation suggested that the established law be changed by making the jury part of the procedure for the punishment of criminal contempt. This is more significant in that such a proposal had only recently been put before Congress as part of the draft penal code of Edward Livingston of Louisiana.

Nor has the constitutionality of the power been doubted by this Court throughout its existence. In at least two score cases in this Court, not to mention the vast mass of decisions in the lower federal courts, the power to punish summarily has been accepted without question. ^[2] It is relevant to call the roll of the Justices, not including those now sitting, who thus sustained the exercise of this power:

Bradley Moody R. H. Jackson

To be sure, it is never too late for this Court to correct a misconception in an occasional decision, even on a rare occasion to change a rule of law that may have long persisted but also have long been questioned and only fluctuatingly applied. To say that everybody on the Court has been wrong for 150 years and that that which has been deemed part of the bone and sinew of the law should now be extirpated is quite another thing. Decision-making is not a mechanical process, but neither is this Court an originating lawmaker. The admonition of Mr. Justice Brandeis that we are not a third branch of the Legislature should never be disregarded. Congress has seen fit from time to time to qualify the power of summary punishment for contempt that it gave the federal courts in 1789 by requiring in explicitly defined situations that a jury be associated with the court in determining whether there has been a contempt. See, e.g., 18 U.S.C. § 3691, 18 U.S.C.A. § 3691; Civil Rights Act of 1957, 71 Stat. 634, 638, 42 U.S.C. § 1995, 42 U.S.C.A. § 1995. It is for Congress to extend this participation of the jury, whenever it sees fit to do so, to other instances of the exercise of the power to punish for contempt. It is not for this Court to fashion a wholly novel constitutional doctrine that would require such participation whatever Congress may think on the matter, and in the teeth of an unbroken legislative and judicial history from the foundation of the Nation. ^[3]

Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.

Notes

1. Oliver Ellsworth, Chairman, William Paterson, Caleb Strong, Richard Bassett, William Few. 1 Annals of Cong. 17.
2. Ex parte Kearney, 7 Wheat. 38, 5 L.Ed. 391; In re Chiles, 22 Wall. 157, 22 L.Ed. 819; Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405; In re Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150; In re Cuddy, 131 U.S. 280, 9 S.Ct. 703, 33 L.Ed. 154; In re Swan, 150 U.S. 637, 14 S.Ct. 225, 37 L.Ed. 1207; In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092; Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; In re Lennon, 166 U.S. 548, 17 S.Ct. 658, 41 L.Ed. 1110; Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997; Nelson v. United States, 201 U.S. 92, 26 S.Ct. 358, 50 L.Ed. 673; United States v. Shipp, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319; Id., 214 U.S. 386, 29 S.Ct. 637, 53 L.Ed. 1041; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186; Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979; Craig v. Hecht, 263 U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293; Brown v. United States, 276 U.S. 134, 48 S.Ct. 288, 72 L.Ed. 500; Sinclair v. United States, 279 U.S. 749, 49 S.Ct. 471, 73 L.Ed. 938; Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375; Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993; United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884; Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717; Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95.
3. 'We do not write on a blank sheet. The Court has its jurisprudence, the helpful repository of the deliberate and expressed convictions of generations of sincere minds addressing themselves to exposition and decision, not with the freedom of casual critics or even of studious commentators, but under the pressure and within the limits of a definite official responsibility.' Chief Justice Hughes speaking on the occasion of the 150th anniversary of the Court. 309 U.S. XIV, 60 S.Ct. LIII.