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The Jenner Bill
In 1956 and 1957, the Supreme Court of the United States issued a series of opinions vindicating the constitutional rights of American communists. Coming near the end of a sustained period of anxiety over the supposed influence of communist “subversives” in American political and cultural affairs, these rulings proved controversial. Perhaps the most forceful response to the decisions came in the form of legislation proposed by Indiana Senator William Jenner in 1957. The “Jenner Bill,” sometimes known as the “Jenner-Butler Bill,” would have revoked the Supreme Court’s appellate jurisdiction over five classes of cases involving the civil and criminal interdiction of subversive political activities. Although the bill ultimately failed, it provoked widespread discussion over the authority and independence of the Supreme Court and the balance of power between branches of government. This spotlight places the bill in historical context with a view to better understanding the issues it raised.
Article III, Section 2’s Exceptions Clause gives the Supreme Court appellate jurisdiction “with such exceptions, and under such regulations as the Congress shall make.” Since 1789, Congress has frequently regulated the Supreme Court’s appellate jurisdiction under this provision, usually laying out broad types of appeals that the Court may hear. On rare occasions, Congress has also attempted to use this power to prevent the Supreme Court from deciding controversial issues. The best-known incident occurred in the years following the U.S. Civil War. In 1868, Congress revoked the Court’s jurisdiction to hear certain habeas corpus appeals. This repeal was designed to prevent the justices from hearing a pending challenge to military government in the former confederate states. The Supreme Court upheld this repeal in Ex parte McCardle (1869).
Since Congress seldom used its Exceptions Clause power in such a targeted manner over the next several decades, the true scope of Congress’s authority remained untested when the Senate began to consider limiting the Court’s jurisdiction in the 1950s. Most twentieth-century lawyers and scholars believed that McCardle was the leading precedent on the issue, though other Reconstruction-era decisions arguably ambiguated the Court’s seemingly definitive holding in that case. In a 1953 Harvard Law Review article, influential law professor Henry Hart Jr. also suggested some theoretical difficulties with the view that Congress held plenary power over federal jurisdiction under the Exceptions Clause.
Serious political debates over this power began shortly before the judicial decisions that prompted the Jenner Bill. Some segregationist politicians—including James Eastland, the chair of the Senate Judiciary Committee—argued, in response to a line of desegregation decisions in the 1940s and ’50s, that Congress could and should revoke the Supreme Court’s power to invalidate state statutes. This idea did not gain widespread acceptance in the Senate, and the Jenner Bill was not directly related to debates over segregation. But, Jenner and other supporters of the legislation drew on these existing arguments to make the case that the Supreme Court had exceeded its remit and needed to be reined in.
Pennsylvania v. Nelson (1956) was the first major “subversives” case precipitating Jenner’s claim. Nelson involved the criminal prosecution of an alleged communist under a state anti-sedition statute. Some forty-one other states had similar laws. Several of these state laws, including the Pennsylvania statute at issue in Nelson, predated the federal anti-subversive statute, the Smith Act of 1940. Other state laws took their lead from that Act. In Nelson, the Court held that the Smith Act preempted these state statutes because it was a comprehensive scheme designed to occupy the field of anti-subversive criminal laws nationwide. Hardline anti-communist politicians, including Senator Eastland and Representative Howard Smith, the Smith Act’s namesake, lambasted the Court’s interpretation of the Act. To these critics, the Court had needlessly set free a communist and hamstrung the ability of states to combat other subversives. Eastland held hearings exploring options for reversing the decision at which he and Wisconsin Senator Joseph McCarthy issued scathing rebukes to the Court, accusing the justices of operating as politicians, rather than judges. While Eastland’s efforts drew soft support from other members of the Judiciary Committee, they did not materialize into draft legislation until the Court issued further opinions enraging strident anticommunists.
A few days after deciding Nelson, the Court further aggrieved politicians of that stripe with its decision in Slochower v. United States (1956). That case invalidated a college professor’s dismissal for exercising his privilege against self-incrimination in a hearing of the Judiciary Committee’s Internal Security Subcommittee. In May 1957, the Court held that the New Mexico Board of Bar Examiners had violated the Due Process Clause of the Fourteenth Amendment by refusing to allow an applicant to take the bar exam. The Court held that the Board had improperly based a finding that the applicant did not have “good moral character” on his former communist affiliations.
The coup de grâce, however, came on June 17, 1957. On what came to be known as “Red Monday,” the Court handed down several major decisions in favor of communists, reasoning that their rights had been violated by various anti-subversive measures. Although these cases dealt with several major issues, perhaps the most controversial decisions were United States v. Yates (1957) and Watkins v. United States (1957). In Yates, the Court interpreted the Smith Act narrowly in overturning the convictions of several California communists. Defendants could not be penalized under that law, the Court held, for merely advocating abstract political ideas, whatever their content. Advocacy of this kind, the Court reasoned, was protected by the First Amendment. By interpreting the Act only to punish actions or words that created a “clear and present danger” of lawlessness, critics claimed that Yates curtailed the law’s effectiveness as an omnibus anti-communist fiat. Watkins overturned the contempt-of-Congress conviction of a witness who refused to name individuals he knew to be members of the Communist Party during a hearing of the House Un-American Activities Committee (HUAC). Writing for the majority, Chief Justice Earl Warren held that Congress only had power to punish individuals for refusing to answer questions “pertinent” to the inquiry at hand. It did not have the power to “expose for the sake of exposure.” HUAC proceedings had become notorious for doing precisely that, and many on the right suggested that the Court’s decision would curb that committee’s ability to ferret out communists.
Unsurprisingly, the Court’s decisions were unpopular with hardline anti-communists. McCarthy, perhaps the most notorious member of this political fraternity, complained, “I will not say that Earl Warren is a Communist, but I will say he is the best friend of Communism in the United States.” President Dwight Eisenhower refused to be drawn into public discussion about the decisions but privately railed against Warren and Justice William Brennan Jr., both of whom he had appointed to the Court. Some sources claim the President sent a profane complaint to Warren. The Chief Justice recorded in his memoirs that Eisenhower remained angry about the decisions even years later. When Warren asked Eisenhower how he would have dealt with the legal issues communists had brought to the courts, Eisenhower responded, “I would kill the S.O.B.s[.]”
Reflecting a similar level of dissatisfaction, Jenner introduced legislation to restrict the Court’s jurisdiction on July 26, 1957, a few weeks after “Red Monday.” The bill proposed to revoke the Supreme Court’s jurisdiction over five sets of cases corresponding to recent Supreme Court decisions in which the justices had ruled in favor of alleged subversives: bar admissions; cases involving the scope of Congressional proceedings or contempt of Congress charges; cases involving the federal government’s loyalty-security programs (under which communists could be removed from government positions); cases involving state executive or legislative actions against subversives; and anti-subversive rules of education boards and related agencies. Attempting to bolster the bill, Jenner blasted the Court’s “heedless, twisted, dishonest, pro-Communist” decisions in each of these areas, arguing that the Court’s jurisdiction had to be pruned to avoid further “Red Mondays.” The Court’s jurisprudence, Jenner argued, had done more to undermine the fight against communism than “anything in the last quarter century.”
After perfunctory hearings in Jenner’s Internal Security Subcommittee, the bill came before the full Judiciary Committee, only to be sent back for more extensive hearings after Missouri Senator Thomas Hennings Jr. raised concerns about the proposal. The subcommittee amassed a large body of evidence and testimonials castigating the Supreme Court and claiming that its decisions had emboldened domestic communists. Although several dozen law school deans and other legal experts came out against the proposal, a minority of experts, most notably former Notre Dame Law School Dean Clarence Manion, supported the bill. Those in favor of the proposed legislation often emphasized the Exceptions Clause and McCardle. According to Manion, for example, Congress was “expressly authorized to do what this bill proposes to accomplish.” Revoking appellate jurisdiction, he claimed, would merely restore the balance of institutional power, “which the Supreme Court has usurped, destroyed or impaired.” On March 10, 1958, the bill passed out of the subcommittee, and the full committee resumed consideration of the bill.
Although Jenner claimed overwhelming public support for his bill, it generated criticism from multiple angles. Several major newspapers, including some critical of the Court’s decisions, issued editorials decrying the attempt to clip the Court’s wings. The New York Times, for example, argued that denying the Court the opportunity to resolve discrepancies between state or inferior federal court rulings would leave a major area of constitutional law “in a state of confusion.” The Times’ editorial board contended that “it would be fatal to our form of government, and to civil liberties as well, if Congress punished the court for unpopular decisions by taking away its authority in certain cases[.]” The American Bar Association and Attorney General William Rodgers also denounced the bill. Rodgers warned that the proposed legislation “threaten[ed] the independence of the judiciary[,]” and “would be extremely detrimental to the administration of justice.”
In the face of this criticism, the bill initially looked likely to fail in the Judiciary Committee. However, Maryland Senator John Marshall Butler offered a series of amendments that converted four of the five proposed jurisdictional measures into changes in underlying substantive law. For example, Butler’s amendments “corrected” the Court’s reading of the Smith Act in Yates and Nelson, clarifying that the statute was designed to punish the advocacy of abstract ideas and was not designed to preempt similar state laws. The only provision of the bill’s original text that remained unchanged after these amendments was the removal of the Court’s jurisdiction to hear cases arising from the denial of state bar admission.
These amendments satisfied most of the committee’s members, who approved the Bill by a 10–5 margin. The committee’s minority, however, issued a strongly worded report that laid out several concerns with both the original bill and the sweeping changes to multiple federal statutes wrought by Butler’s amendments. For example, while Jenner and others had relied heavily on what they took to be a consensus of the American people against the Court’s recent decisions, the report noted that, even if this were true, “[t]he majority of the people undoubtedly do not want the Supreme Court reduced to the whipping boy of the Congress. This is the intended purpose of this intimidating and coercing proposal.”
When the bill came up for debate before the Senate on August 20, Jenner made the opposite argument. The “balance of powers decreed by the Constitution had[,]” he claimed, “been upset by the usurpations of the judicial branch.” Moreover, Jenner asserted, the judiciary’s arrogation of power had led to “a crisis in law enforcement, a crisis in dealing with the Communist conspiracy; but above all … a constitutional crisis[.]” The only remedy, he claimed, was to use “one of the check-and-balance provisions of the Constitution” to restrain the excesses of what he described as a “runaway Supreme Court[.]”
Senator Hennings offered the primary rejoinder to Jenner’s speech. Although most of the bill was now targeted at revising existing statutes, Hennings focused on the threat posed by the jurisdiction stripping provision. It was, he argued, “contrary to our historic principle that the Supreme Court should have the final word as to the constitutionality of government action. It would be a legislative decree to the Supreme Court that it should render decisions which are politically popular or it will lose its power to review such cases.” Hennings claimed that “once we begin to whittle away at the jurisdiction of the Supreme Court,” there would be little to stop Congress from doing so in response to future opinions. As Hennings and other opponents of the bill pointed out, the legislation also implied a base invitation to lower federal courts and state tribunals to ignore Supreme Court precedents that were already the law of the land. If passed, Hennings argued, the bill could be “the first swing of the ax in chipping away the whole foundation of our independent judiciary.”
The Senate approved Hennings’ motion to table the bill by a margin of 49–41. This effectively killed its chances in the Senate. Although the House of Representatives passed a near-contemporaneous bill attempting to undo the Court’s preemption ruling in Nelson, this bill was eventually defeated by a wider margin in the Senate.
Legislators continued to float the idea of revoking the Supreme Court’s appellate jurisdiction to undermine or undo controversial decisions during the 1960s and ’70s, though the emphasis changed to cases involving legislative apportionment, school prayer, and obscenity. In the early 1980s, Congress held hearings on a more concerted effort to revoke the Court’s jurisdiction over abortion and school prayer cases, though this effort also failed. The constitutionality of these efforts was much debated. Proponents of such legislation often pointed to the McCardle precedent, though Justice William O. Douglas noted in passing in a 1962 dissenting opinion that “[t]here is a serious question whether the McCardle case could command a majority view today.”
Debate remains on the scope of Congress’s power to revoke jurisdiction to counteract a Supreme Court ruling. In response to a 2006 decision, Congress passed legislation revoking all federal judicial jurisdiction to hear habeas corpus petitions from detainees at the Guantanamo Bay Naval Base. In Boumediene v. Bush (2008), the Supreme Court invalidated this legislation. This marked the first time since Reconstruction that the Court had struck down a jurisdiction-stripping statute. The Court’s ruling, however, was predicated on the grounds that the statute violated the Constitution’s Suspension Clause, rather than the Exceptions Clause that had formed the basis of the Jenner Bill.
Winston Bowman, Associate Historian
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Related FJC Resources:
Read about Selected Developments in the History of Supreme Court Jurisdiction
Learn more about Cases that Shaped the Federal Courts: Ex parte McCardle
Dilliard, Irving. “Senator Thomas C. Hennings Jr. and the Supreme Court.” Missouri Law Review 26 (1961): 429.
Gunther, Gerald. “Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate.” Stanford Law Review 36 (1984): 895.
Horwitz, Morton J. The Warren Court and the Pursuit of Justice. New York: Hill and Wang, 1999.
Sabin, Arthur J. In Calmer Times: The Supreme Court and Red Monday. Philadelphia: University of Pennsylvania Press, 1999.
Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from 1798 to the War on Terrorism. New York: W.W. Norton, 2005.
This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States government.” While the Center regards the content as responsible and valuable, these materials do not reflect policy or recommendations of the Board of the Federal Judicial Center.