Supreme Court during the Cold War

Date: Mid-1940’s to late 1980’s

Description: Nonviolent conflict between the United States and other Western nations and the Soviet Bloc. The efforts of the United States to combat communist ideology raised a number of constitutional issues that were addressed by the Supreme Court.

Significance: Legal challenges to the laws and policies enacted to fight the Cold War reaching the Supreme Court involved fundamental civil rights, including freedom of speech and freedom of association, and the apportionment of war powers between Congress and the president.

Shortly after the end of World War II (1941-1945), the United States and the Soviet Union became engaged in a military, economic, and ideological rivalry known as the Cold War. For more than four decades, the United States carried out a foreign policy aimed at halting the spread of Soviet influence abroad. This “containment” strategy had a domestic counterpart: preventing the infiltration of Soviet agents and the spread of communist ideology in the United States.

After World War II, successive presidential administrations and congressional leaders were concerned that Soviet agents and communist sympathizers were attempting to convert American public opinion toward their cause. Many leaders worried that the Soviets had already infiltrated some media outlets, the film industry, various universities, and even certain departments of the U.S. government. In response, the U.S. government enacted laws, executive orders, and policies to reduce or eliminate these threats. The enactment of these laws and policies brought up various constitutional issues most of which were addressed in some way by the Supreme Court. Among these issues were freedom of speech, freedom of association, and freedom of assembly.

Loyalty Oaths and Boards

In 1947 President Harry S Truman issued Executive Order 9835, which established loyalty boards in each state department to adjudicate cases of alleged disloyalty to the state. Suspect federal employees would be removed from their positions if “reasonable grounds” were found to exist for a “belief” of disloyalty. President Dwight D. Eisenhower issued his own version of that policy in 1951, requiring only “reasonable doubt as to the loyalty” of a federal employee in order to trigger removal. Various states, school districts, and other government entities began to require loyalty oaths as a requirement for employment.

Loyalty oaths survived various legal challenges for most of the 1950’s. However, in Kent v. Dulles (1958), the Court ruled that the State Department’s requirement that a traveler sign a “noncommunist affidavit” to receive permission to travel violated the due process clause of the Fifth Amendment. Then, in a landmark decision, the Court ruled in Keyishian v. Board of Regents (1967) that a law requiring public school teachers in New York to sign a loyalty oath violated the First Amendment.

Censorship

Many domestic efforts during the Cold War sought to censor publications and speech that were deemed dangerous for various reasons. Some censorship laws, such as the Smith Act of 1940, targeted advocacy of violence against the government. Other efforts centered on sensitive military data and other information that could harm American security if released. In general, the Court upheld such efforts when it could be demonstrated that particular forms of speech posed a distinct and immediate danger to the state.

In other cases, however, the Court rejected efforts to censor putatively dangerous publications and speech. In Lamont v. Postmaster General (1965), for example, the Court ruled unanimously against a law requiring the Postmaster General to seize and destroy all unsealed mail from abroad deemed to be “communist political propaganda” because such an act violated the First Amendment.

Guilt by Association

Some laws enacted during the Cold War attempted to eradicate communist “cells,” which allegedly existed in a secret network directed by Moscow and intended to overthrow the U.S. government. The McCarran Act of 1950 and the Communist Control Act of 1954, for example, placed restrictions on communist organizations by requiring registration, excluding their members from certain posts, and even providing for the internment of communists during a national emergency.

Though these acts represent the height of anticommunist fervor in the United States, the Court did not rule on their constitutionality for a number of years. Eventually, though, major provisions of the acts were deemed to be unconstitutional.

The Vietnam War

The Vietnam War brought a host of occasions for the Court to rule on constitutional issues. In United States v. Seeger (1965), for example, the Court effectively extended the military exclusion for “conscientious objectors” to those who oppose war on the basis of sincere moral beliefs that are not part of a particular religious doctrine. In Bond v. Floyd (1966), the Court ruled against the Georgia legislature’s refusal to seat a duly elected legislator, Julian Bond, because he had supported opponents of the draft. In Tinker v. Des Moines Independent Community School District (1969), the Court ruled against a public school that suspended students for wearing black armbands to protest the Vietnam War. The Court thus upheld the protection of “symbolic speech” under the First Amendment, even in schools.

The Court reined in the government’s use of the national security argument for censoring factual military information in New York Times Co. v. United States (1971). In this case, a former official of the Department of Defense had leaked the Pentagon Papers (a study of the Vietnam War produced by the department) to The New York Times. The federal government attempted to halt the publication, but the Court held this case of prior restraint to be unconstitutional.

War Powers

In addition to matters of civil rights and liberties, the Cold War raises constitutional questions about the apportionment of war powers between the president and Congress. The Vietnam War especially focused attention on this question, particularly as public sentiment turned against the war in the late 1960’s. Congress had effectively delegated its power to declare war in the Tonkin Gulf Resolution of 1964 but attempted to regain those powers through the War Powers Act of 1973. Though the Court did not rule directly on the War Powers Act, other decisions by the Court, such as Immigration and Naturalization Service v. Chadha (1983), suggest that provisions of the act amount to an unconstitutional legislative veto.

The continuous sense of threat to the United States that existed during the Cold War, due in large part to the two superpowers’ nuclear arsenals, spawned the idea that the president should have enormous discretion in military deployments and war making, although this ability was not consistent with the Constitution. In retrospect, the Cold War was an almost surreal period in which the Court faced the difficult task of preserving the ideals of the Constitution in a global environment that threatened the country, its ideological values, and its population.

Bibliography

Hogan, Michael J. A Cross of Iron: Harry S. Truman and the Origins of the National Security State, 1945-1954. New York: Cambridge University Press, 1998.

Neville, John F. The Press, the Rosenbergs, and the Cold War. Westport, Conn.: Praeger, 1995.

Theoharis, Athan. Chasing Spies: How the FBI Failed in Counterintelligence but Promoted the Politics of McCarthyism in the Cold War Years. Chicago: Ivan R. Dee, 2002. A skeptical account of FBI activities reveals the difficulty of securing convictions in espionage cases.

Urofsky, Melvin I. Division and Discord: The Supreme Court Under Stone and Vinson, 1941-1953. Columbia: University of South Carolina Press, 1997.

Zeinert, Karen. McCarthy and the Fear of Communism in American History. Springfield, N.J.: Enslow, 1998.