View source for Joint Anti-Fascist Refugee Committee v. McGrath

{{Use mdy dates|date=September 2023}}
{{Infobox SCOTUS case
  |Litigants=Joint Anti-Fascist Refugee Committee v. McGrath
  |ArgueDate=October 11
  |ArgueYear=1950
  |DecideDate=April 30
  |DecideYear=1951
  |FullName=Joint Anti-Fascist Refugee Committee v. [[J. Howard McGrath]], Attorney General, et al.
  |USVol=341
  |USPage=123
  |ParallelCitations=71 S. Ct. 624; 95 [[L. Ed. 2d]] 817; 1951 [[U.S. LEXIS]] 2349
  |Prior=
  |Subsequent=
  |Holding=The judgments are reversed and the cases are remanded to the District Court with instructions to deny the motions that the complaints be dismissed for failure to state claims upon which relief could be granted.
  |Plurality=Burton
  |JoinPlurality=Douglas
  |Concurrence=Black
  |Concurrence2=Frankfurter
  |Concurrence3=Jackson
  |Concurrence4=Douglas
  |Dissent=Reed
  |JoinDissent=Vinson, Minton
  |NotParticipating=Clark
  |LawsApplied=
}}
{{wikisource}}
'''''Joint Anti-Fascist Refugee Committee v. McGrath''''', 341 U.S. 123 (1951), was a [[Supreme Court of the United States|United States Supreme Court]] case that held that groups could sue to challenge their inclusion on the [[Attorney General's List of Subversive Organizations]]. The decision was fractured on its reasoning, with each of the Justices in the majority writing separate opinions.

==Background==
{{context|section|date=January 2018}}
The [[Joint Anti-Fascist Refugee Committee]] was formed by [[Lincoln Battalion]] veterans of the [[Spanish Civil War]] to provide aid to the [[Spanish Loyalists]] who were refugees from [[Francoist Spain]].<ref>{{cite journal|last1=Deery|first1=Phillip|title="A blot upon liberty": McCarthyism, Dr. Barsky and the Joint Anti-Fascist Refugee Committee|journal=[[American Communist History]]|date=December 2009|volume=8|issue=2|pages=167–196|doi=10.1080/14743890903335948|s2cid=154499275 |url=http://vuir.vu.edu.au/15464/1/15464.pdf|access-date=4 March 2018}}</ref>  In 1942, it was licensed to do so in [[Vichy France]] by President [[Franklin D. Roosevelt]]'s wartime administration and was then granted tax-exempt status.<ref name=grapes>{{cite journal|last1=Goldstein|first1=Robert Justin|title=The Grapes of McGrath: The Supreme Court and the Attorney General's List of Subversive Organizations in Joint Anti-Fascist Refugee Committee v. McGrath (1951)|journal=Journal of Supreme Court History|date=March 2008|volume=33|issue=1|pages=68–88|doi=10.1111/j.1540-5818.2008.00179.x|url=https://deepblue.lib.umich.edu/bitstream/handle/2027.42/73480/j.1540-5818.2008.00179.x.pdf?sequence=1&isAllowed=y|access-date=4 March 2018|hdl=2027.42/73480|s2cid=55127837 |hdl-access=free}}</ref>{{rp|70}} [[Dorothy Parker]] took charge of fundraising for the committee, which soon attracted the support of [[Leonard Bernstein]], [[Albert Einstein]], [[Lillian Hellman]], [[Langston Hughes]], and [[Orson Welles]].<ref name=nyu>{{cite web|title=Guide to the Joint Anti-Fascist Refugee Committee Records ALBA.057|url=http://dlib.nyu.edu/findingaids/html/tamwag/alba_057/bioghist.html|website=[[Tamiment Library and Robert F. Wagner Archives]]|publisher=[[New York University]]|access-date=4 March 2018}}</ref>

In 1946, Dr. [[Edward K. Barsky]] and the rest of the leadership of the committee were held in [[contempt of Congress]] after they on principle refused to comply with subpoenas from the [[House Un-American Activities Committee]].<ref name=grapes/>{{rp|70}}<ref>{{cite news|last1=Associated Press|author-link=Associated Press|title=VERDICTS UPHELD IN CONTEMPT CASES; 11 Anti-Fascists Fail to Get Supreme Court Review -- Eisler Conviction Affirmed VERDICTS UPHELD IN CONTEMPT CASES|url=https://www.nytimes.com/1948/06/15/archives/verdicts-upheld-in-contempt-cases-11-antifascists-fail-to-get.html|access-date=4 March 2018|work=[[The New York Times]]|date=15 June 1948|page=A1}}</ref> On March 21, 1947, President [[Harry S. Truman]] issued [[Executive Order 9835]], which led Attorney General [[Tom C. Clark]] to publish the [[Attorney General's List of Subversive Organizations]].<ref name=grapes/>{{rp|68}} The list sought the public identification groups the Attorney General considered to be "totalitarian, Fascist, Communist, or subversive."<ref name=grapes/>{{rp|68}} The committee were included on the list.<ref name=grapes/>{{rp|70}}  Under Section 9A of the [[Hatch Act of 1939]], that information was disseminated among the agencies of the US government.

In 1948, the Anti-Fascists sued in the [[United States District Court for the District of Columbia]] by alleging that they were exclusively a relief organization, the listing had deprived them of their rights under the [[Due Process Clause]] and the [[First Amendment to the United States Constitution|First Amendment]], and they had been injured by their loss of tax-exempt status and thé amage to their reputation.<ref name=grapes/>{{rp|72}}  The Justice Department responded in a two-sentence motion, which said the lawsuit failed to state a claim.<ref name=grapes/>{{rp|72}} In June 1948, the district court dismissed the Anti-Fascists' lawsuit without an opinion.<ref name=grapes/>{{rp|72}}

In February and April 1949, US District Judges [[Jennings Bailey]] and [[Matthew Francis McGuire]] dismissed similar lawsuits by the [[National Council of American-Soviet Friendship]] and the [[International Workers Order]].<ref name=grapes/>{{rp|72}}

In August 1949, the [[Court of Appeals for the District of Columbia Circuit]] ruled against the Anti-Fascists.<ref>[https://scholar.google.com/scholar_case?case=6837551714429636953 ''Joint Anti-Fascist Refugee Committee v. Clark''], 177 F. 2d 79 (D.C. Cir. 1949).</ref> Circuit Judge [[James McPherson Proctor]], joined by Judge [[Bennett Champ Clark]], affirmed the district court, while held that the Anti-Fascists had not been injured by being included on the list of subversives. In a lengthy dissent, Circuit Judge [[Henry White Edgerton]] wrote that the listing was "contrary to fact, unauthorized and unconstitutional."<ref name=grapes/>{{rp|73}} The D.C. Circuit likewise rejected appeals by the other two organizations.<ref name=grapes/>{{rp|73}}<ref>[https://scholar.google.com/scholar_case?case=3099144965167410278 ''International Workers Order, Inc. v. Mcgrath''], 182 F.2d 368 (D.C. Cir. 1950)</ref>

==Supreme Court==
===Oral argument and consideration===
In May 1950, a divided Supreme Court upheld the contempt convictions of the anti-fascists' leadership.<ref>[https://scholar.google.com/scholar_case?case=15932875793978657276 ''United States v. Bryan''], 339 U.S. 323 (1950); [https://scholar.google.com/scholar_case?case=15811905707903426897 ''United States v. Fleischman''], 339 U.S. 349 (1950).</ref><ref>{{cite magazine |last1= |date= |title=Controlling McCarthy |url=https://newrepublic.com/article/104629/controlling-mccarthy |access-date=4 March 2018 |magazine=[[The New Republic]] |issue=14 March 1954}}</ref>  The Supreme Court then granted the listed subversive organizations' petitions for writs of [[certiorari]]. Even after review had been granted, the Justices ignored arguments from their clerks to avoid hearing the case on the basis of the newly passed [[McCarran Internal Security Act]].<ref name=grapes/>{{rp|78}}

Oral arguments were heard on October 11, 1950, where [[O. John Rogge]] appeared for the Anti-Fascists, [[David Rein]] appeared for the Soviet Friendship Council, [[Allan Rosenberg (spy)|Allan R. Rosenberg]] appeared for the IWO, and Solicitor General [[Philip Perlman]] appeared for the government.<ref name=grapes/>{{rp|76}}<ref>{{cite news|last1=Wood|first1=Lewis|title=HIGH COURT HEARS FEALTY OATH PLEAS; Three Organizations Severely Attack Truman Program-- Employe's Case Begun Called Regimentation A Fraternal Organization|url=https://www.nytimes.com/1950/10/12/archives/high-court-hears-fealty-oath-pleas-three-organizations-severely.html|access-date=4 March 2018|newspaper=The New York Times|date=12 October 1950|page=18}}</ref>  Justice [[Tom C. Clark]], who had initiated the list of subversives when he was the Attorney General, recused himself from the case.<ref name=grapes/>{{rp|76}}

The Court unusually did not vote on the case at its next conference, and at the following conference, it deadlocked 4-4.<ref name=grapes/>{{rp|79}} After Justice [[Robert H. Jackson]] was persuaded to switch his vote, Justice [[Harold Hitz Burton]] submitted a draft opinion in favor of the anti-fascists on November 20.<ref name=grapes/>{{rp|79}}  However, Justice Jackson's intense personal dislike of Justice [[William O. Douglas]] made him uncomfortable joining the majority and led him to complete an uncirculated draft concurrence in which he attacked Douglas's criticism of the government because it "denounced as ‘totalitarians’—by one how never has been able to see totalitarianism in any Communist Case before this Court."<ref name=grapes/>{{rp|80–81}} Justice [[Stanley Forman Reed]] delayed completing his dissent while the majority Justices were airing their differences. That left Justice [[Felix Frankfurter]] to complain that his "holding up judgment" had been unparalleled for at least 50 years.<ref name=grapes/>{{rp|79}} Reed ultimately circulated a revised version of his dissent on April 21, 1951.<ref name=grapes/>{{rp|80}}

===Controlling opinion===
On April 30, 1951, the Supreme Court delivered judgment in favor of the anti-fascists by reversing and remanding by a vote of 5–3.<ref>{{cite news|last1=Wood|first1=Lewis |title=Court Voids 3 Red Listings; Backs Loyalty Ouster Power; Six Different Opinions|url=https://www.nytimes.com/1951/05/01/archives/court-voids-3-red-listings-backs-loyalty-ouster-power-six-different.html|access-date=4 March 2018|newspaper=The New York Times|date=1 May 1951|page=A1}}</ref> The Court failed to produce a majority opinion and instead offered six different opinions totaling 70 pages.<ref name=grapes/>{{rp|81}}

Justice [[Harold Hitz Burton]], joined only by Justice [[William O. Douglas]], wrote the controlling [[plurality opinion]]. Burton accepted as true all of the allegations made by the anti-fascists because they had never been contested by Justice Department.<ref name=grapes/>{{rp|81}} According to Burton, there was standing to sue for a violation of "the right of a bona fide charitable origination to carrying on its work, free from defamatory statements."<ref name=grapes/>{{rp|82}}  Burton then determined that the Attorney General's behavior had been "patently arbitrary."<ref name=grapes/>{{rp|82}} The Court remanded to the district court with instructions to determine if the groups were in fact communistic.<ref name=grapes/>{{rp|82}}

===Justice Black's concurrence===
Justice [[Hugo Black]] concurred by writing alone to clarify that he thought the Attorney General's list was itself an unconstitutional violation of [[bill of attainder]] clause. He appended a passage from the footnotes of the historian [[Thomas Babington Macaulay]]'s ''[[The History of England from the Accession of James the Second|History of England from the Accession of James the Second]]'' by describing the evils of the Great Act of Attainder enacted at the behest of [[James II of England]].

===Justice Frankfurter's concurrence===
Justice Frankfurter concurred by writing alone for over 25 pages.<ref name=grapes/>{{rp|84}} Frankfurter first reasoned that the plaintiffs had standing to sue because their injuries "would be clearly [[actionable]] at [[common law]]."  He then went on to argue that the Attorney General's listing was an unconstitutional violation of the [[Due Process Clause]] because those listed had not been given notice and a hearing.

===Justice Jackson's concurrence===
Justice Jackson concurred alone.  He focused much of his criticism on a separate case decided that day in which the equally-divided Supreme Court had affirmed a lower court ruling permitting the government to fire Dorothy Bailey for suspected disloyalty. Jackson wrote it was "justice turned bottom-side up" to grant relief to the groups while denying it to an individual and that the Court "may create the impression that the decision of the case does not raise above the political controversy that engendered it."<ref name=grapes/>{{rp|83}}

===Justice Douglas's concurrence===
Justice Douglas also added a concurrence, alone.<ref name=grapes/>{{rp|84}} Writing that he felt the need to combat a "[[fifth column]] worming its way into government," Douglas still feared that denying [[procedural due process]] to subversives was "to start down the totalitarian path." He then contrasted "our constitutional scheme" to the "technique" of the [[Nuremberg trials]] prosecutor, who had been Justice Jackson. Douglas also spent several pages criticizing the equally-divided Court's decision to deny relief in Bailey's case.

===Justice Reed's dissent===
Justice Reed, joined by Chief Justice [[Fred M. Vinson]] and Justice [[Sherman Minton]], dissented. Reed felt that the plaintiffs had no standing to sue because they had suffered no injury. Regardless, he opined that constitutional [[due process]] requires neither notice nor a hearing.<ref name=grapes/>{{rp|85}}

==Subsequent developments==
In 1952, the United States Treasury sued the anti-fascists for back taxes thaï erre now owed, and three years later, the committee disbanded.<ref name=nyu/>  In 1954, a divided Supreme Court upheld New York state's revocation of Dr. Barsky's medical license.<ref>[https://scholar.google.com/scholar_case?case=211911027037365564 ''Barsky v. Board of Regents of Univ. of NY''], 347 U.S. 442 (1954).</ref> After a heavily publicized trial, the [[New York State Insurance Department]] ordered the IWO liquidated in 1954 and cited "political hazard."<ref>[https://repository.jmls.edu/cgi/viewcontent.cgi?article=1778&context=lawreview Elena Marcheschi, ''Book Review: Red Scare in Court: New York Versus the International Workers Order''], 27 J. Marshall L. Rev. 139 (1993).</ref><ref>In re ''International Workers Order'', [https://scholar.google.com/scholar_case?case=13076067094124638789106 N.Y.S.2d 953] (N.Y. Sup. Ct. 1951), affd, [https://scholar.google.com/scholar_case?case=3026713734158160542 113 N.Y.S.2d 755] (N.Y. App. Div. 1952), affd, [https://scholar.google.com/scholar_case?case=1926236255576082848 112 N.E.2d 280] (N.Y. 1953).</ref>

In April 1954, U.S. District Judge [[James Ward Morris]] dismissed the anti-fascists lawsuit again and now found that the new [[Executive Order 10450]] had made the controversy [[mootness|moot]]. In August 1954, the D.C. Circuit reversed that judgment and gave the groups the opportunity to pursue administrative review.<ref>[https://scholar.google.com/scholar_case?case=13315172978361654684 ''Joint Anti-Fascist Refugee Committee v. Brownell''], 215 F. 2d 870 (D.C. Cir 1954).</ref> In November 1955, District Judge [[Luther Youngdahl]] dismissed the group's lawsuit again.<ref>[https://scholar.google.com/scholar_case?case=17194039327772409058 ''National Council of American-Soviet Friendship v. Brownell''], 148 F. Supp. 94 (D.D.C. 1955).</ref> In February 1957, the D.C. Circuit affirmed by reasoning the group had failed to adequately seek administrative review.<ref>[https://scholar.google.com/scholar_case?case=11007667235241984588 ''National Council of American-Soviet Friendship v. Brownell''], 243 F. 2d 222 (D.C. Cir. 1957).</ref>

After the Court's second decision in ''[[Communist Party v. Subversive Activities Control Board]]'' (1961), the Soviet Friendship Council continued pursuing its challenge to the Attorney General's listing. In May 1963, it ultimately succeeded, when the D.C. Circuit concluded that the evidence proffered against the council had been "negligible."<ref>[https://scholar.google.com/scholar_case?case=8167249249712885010 ''Nat. Coun. of American-Soviet Friendship v. Subversive Activities Cont. Bd.''], 322 F.2d 375 (D.C. Cir. 1963).</ref><ref name=grapes/>{{rp|87}}

==See also==

* [[Joint Anti-Fascist Refugee Committee]]
*''[[Australian Communist Party v Commonwealth]]'' (1951)
*[[McCarthyism]]
*[[North American Committee to Aid Spanish Democracy]]
*[[Smith Act trials of Communist Party leaders]]
*[[Suppression of Communism Act, 1950]]
*[[List of United States Supreme Court cases, volume 341]]
*[[List of United States Supreme Court cases by the Vinson Court]]
*[[List of United States Supreme Court cases involving the First Amendment]]

==References==
{{Reflist}}

==Further reading==
*{{cite journal |last=Goldstein |first=Robert J. |year=2008 |title=The Grapes of ''McGrath'': The Supreme Court and the Attorney General's List of Subversive Organizations in ''Joint Anti-Fascist Refugee Committee v. McGrath'' |journal=Journal of Supreme Court History |volume=33 |issue=1 |pages=68&ndash;88 |doi=10.1111/j.1540-5818.2008.00179.x |url=https://deepblue.lib.umich.edu/bitstream/2027.42/73480/1/j.1540-5818.2008.00179.x.pdf |hdl=2027.42/73480 |s2cid=55127837 |hdl-access=free }}
*{{cite journal |last=Harris |first=Robert J. |year=1956 |title=The Impact of the Cold War Upon Civil Liberties |journal=Journal of Politics |volume=18 |issue=1 |pages=3&ndash;16 |doi=10.2307/2126673|publisher=The Journal of Politics, Vol. 18, No. 1 |jstor= 2126673 |s2cid=154914366 }}

==External links==
* {{caselaw source
 | case = ''Joint Anti-Fascist Refugee Committee v. McGrath'', {{ussc|341|123|1951|el=no}}
 | justia =https://supreme.justia.com/cases/federal/us/341/123/
 | loc =http://cdn.loc.gov/service/ll/usrep/usrep341/usrep341123/usrep341123.pdf
 }}

{{US1stAmendment Assemble and Petition Clause Supreme Court case law}}

[[Category:United States Supreme Court cases]]
[[Category:United States Supreme Court cases of the Vinson Court]]
[[Category:United States freedom of association case law]]
[[Category:1951 in United States case law]]
[[Category:Anti-communism in the United States]]