Tom C. Clark was one of the more controversial justices of the twentieth century Supreme Court. His 18 years on the Court were filled with controversies and shifts among the justices as they decided issues. Clark himself took the unusual step of resigning from the Court in 1967. He did this to avoid any question of conflict of interest when his son, Ramsey Clark, took the position of U.S. Attorney General. Knowing that Ramsey himself or his subordinates would argue cases before the Court that could be interpreted as at least a violation of propriety in court, led the father to resign.
Tom Clark was born in Dallas, Texas, on September 23, 1899. Having been born and raised in a family of lawyers, Clark followed in the family profession, graduated from the University of Texas law school in 1922. After some years of practice in the family firm and a stint as a district attorney of Dallas, Clark moved to Washington, D. C., where he worked for the government during World War II.
Clark’s support in 1944 of Harry S. Truman’s bid for Franklin D. Roosevelt’s vice-president at the Democratic Party convention led Truman when president to nominate Clark as Attorney General.
An opening on the Supreme Court followed four years later. Some amount of controversy followed Clark’s nomination by President Truman; nevertheless, the vote in the Senate was seventy-three to eight in favor of Clark taking the vacancy on the Court.
As Attorney General, Clark had to deal with the growing Red Scare that gripped the nation after the breakdown of the alliance that had won World War II. On the international scene, the concept of a Cold War dominated that breakdown. At home, the Red Scare had significant political overtones for the Truman administration as the accusation of being ‘‘soft on communism’’ was leveled against the Democratic administration.
Clark was at the center of the maelstrom surrounding the Red Scare; even in Clark’s own administration of the justice department, there was pressure on him to take action against communists, their party, and those accused of being disloyal, if not guilty of, espionage. The main call for action was from J. Edgar Hoover, Director of the FBI who, although ostensibly subordinate to Clark nevertheless, put pressure on the Justice Department in his crusade to destroy the Communist Party and all those he believed were the enemies of this nation. Behind Senator Joseph McCarthy (Rep. Wisc.) was Hoover. During the years 1950 to 1954, Hoover supplied McCarthy and the House Un-American Activities Committee (HUAC) with information surreptitiously given to these fellow crusaders. Hoover also placed FBI men on the staffs of McCarthy and HUAC.
In an attempt to counterattack charges of ‘‘soft on communism’’ and recover from the losses in the 1946 election, in 1947 Clark following Truman’s Executive Order 9335, created the nation’s first peacetime loyalty program.
The next year, 1948, Clark issued a list of 123 allegedly subversive organizations. It was compiled for use of the Federal Loyalty Review Board. Again, the purpose was to demonstrate how vigorous Truman was in exposing true ‘‘subversives.’’ In fact, however, the list was used by many individuals, as well as public loyalty boards. The ‘‘list’’ was used to discredit anyone who might, for any reason, have joined any of these organizations.
The creation and use of this ‘‘subversive list’’ was more than a political tool. It indicated just how far the nation and its leaders would go to show vigor in searching for Reds under the beds; the result was crippling to the civil rights of all citizens.
In 1951, the Supreme Court found the Clark listing process unconstitutional. It was the only major victory won by those opposing the Red Scare until 1957. Justice Clark did not take part in the decision, since he had partaken in the creation of the loyalty system and was responsible for the ‘‘subversive organizations list.’’
To some extent, Clark typified a type ofNew Dealer: one who would give the widest latitude possible to Congress and the executive branch on economic issues but was very narrow on civil rights. The terrible Great Depression seems to have sent the message that only the widest interpretation of the law would restore the economy. The civil rights of individuals and groups were of less consequence and required less concern or protection. Had Clark been able to vote to support the ‘‘subversive organization list’’ in 1951, there is little doubt he would have voted to sustain the loyalty program.
Another case that Clark was not able to participate in was the appeal of the eleven (the twelfth was too ill to be tried) national leaders of the Communist Party, in Dennis v. United States, 341 U.S. 643 (1961). The government prosecutors did not need his vote to confirm the guilt of the communists (six to affirm; two against; Clark not participating). This time and for some years thereafter, the government’s prosecutions of communists and others trapped in the Red Scare resulted, almost invariably, in confirmation of guilt by the Supreme Court.
A change of the Supreme Court’s makeup began in 1953, following the death of Chief Justice Frederick M. Vinson; Earl Warren was appointed Chief Judge; John M. Harlan II and William J. Brennan, Jr., were appointed as associate justices. The result was a new majority ready to recognize the importance of the First Amendment and place curbs on the use of the Red Scare to justify guilty verdicts. The holdouts from joining this new majority (now dissenters) included Justice Clark.
With these changes in the makeup of the Supreme court, the Justice Department, Hoover, and his FBI lost the ability to punish citizens with jail and fines because of what they believed, what organizations they belonged to, and even what they read. Beyond the change in personnel, the change in the Court can be attributed to not only the changed makeup in the Court but also to the dissipation of the Red Scare throughout the nation.
Two developments signify the importance of what was happening: the 1954 televised Army–McCarthy Hearings and the 1957 decision by the Supreme Court in the Yates v. United States, 354 U.S. 298 (1957). Justice Clark led the battle to sustain the guilt of the Yates defendants, but he failed to convince his brethren. The defendants were all from the California branch of the Communist Party. Following the track laid out in the prosecution of the Dennis case defendants, all nineteen of them were found guilty, fined, and were to serve prison terms. In Yates, the new Court majority stated that only when the government could show that any defendant did some act or took some action (beyond believing) could a citizen be found guilty of the Smith Act. More was required to meet the higher standard imposed by the Court majority.
In 1949, when Clark joined the Court, it seems that Chief Justice Vinson was the colleague whose views Clark followed. This changed, however, as the years passed; the influence of Chief Justice Warren can be seen, particularly in 1954, when Warren led the battle for attacking the race issue (Brown v. Board of Education, 347 U.S. 483 ). Clark joined with the other eight justices in the unanimous decision.
During his mature years on the bench, Clark wrote many excellent and important decisions. A review of his participation confirms that Clark, particularly in those later years on the Court, was with the majority in most decisions; one list of majority vs. minority positions taken by Clark counts forty-six majority listing and only sixteen minority positions by him. He also moved from being the leading dissenter on First Amendment issues during the period 1955 and forward to a more flexible view of such issues. He was not implacable; he moved from majority to minorities as he felt the case deserved.
Clark is perhaps best known as the author of the Court’s controversial decision on Mapp v. Ohio, 367 U.S. 643 (1961). In this decision, the Court held that in state criminal trials, the use of evidence obtained in violation of the Fourth Amendment must be excluded. The roots of Mapp took hold, albeit in the face of a continuing controversy, down to this day.
Two areas where Clark wrote for a majority reflected his abiding interest in religious issues that came before the Court, as Mapp showed his strong interest in criminal law. In Abington School District v. Schemmpp, 374 U.S. 203 (1963), the Court banned the recitation of bible reading in public school classrooms. In the 1965 case of U.S. v. Seeger, 380 U.S. 163 (1965), Clark again used his formidable writing skills to obtain a majority opinion that broadened that right of a citizen called to army service, to ask for conscientious objector status on the grounds of what that person’s religion stated about killing and war.
To study the Supreme Court career of Tom C. Clark is to open a significant window on the difficult years that followed World War II. In the latter years, he was still the major voice in opposing any weakening of the government’s use of the courts to attack those he thought posed a threat to the country’s security. Justice Clark also demonstrated his independence as a justice who could move between minority and majority sides, particularly where issues of criminal conduct and religious issues were before the Court.
ARTHUR J. SABIN
References and Further Reading